By Tracey I. Levy
Update 11/18/21: In response to pending lawsuits and the Fifth Circuit’s granting of a motion to stay OSHA’s new COVID-19 Vaccination and Testing ETS, OSHA has posted to its website that it “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
Private employers with 100 or more employees (this counts both part-time and full-time employees, wherever they are located) must now take appropriate steps to comply with the Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) with regard to COVID-19 vaccination and testing requirements. The new ETS requires covered employers to ensure all employees are either fully vaccinated or submit to weekly COVID-19 testing, unless the employer is already covered under the Safer Federal Workforce Guidance for federal contractors and subcontractors or the previously issued OSHA ETS for healthcare providers. The ETS for large employers is comprised of three key requirements:
- A written mandatory vaccination policy, optionally with a weekly testing alternative
Covered employers must develop, implement and enforce mandatory COVID-19 vaccination policies that apply to all employees who report to a workplace where other individuals are present, unless the employees are working full-time from home or work exclusively outdoors. The ETS purportedly recognizes only three exceptions to the vaccination mandate:
- If a vaccine is medically contraindicated;
- If it is medically necessary to delay an employee’s vaccination; or
- If an employee is legally entitled to a reasonable accommodation under federal law because of a disability or sincerely held religious belief.
However, OSHA further grants employers the option of permitting employees who are not fully vaccinated to continue coming to the workplace, provided the unvaccinated employees are tested at least weekly for COVID-19 and wear a face covering in the workplace. With regard to all these requirements, employers must also consider employees’ requests for a reasonable accommodation based on disability or religion.
- Documented confirmation of every employee’s vaccination status
Covered employers are required to determine the vaccination status of each employee, supported by documentation and not the honor system, and maintain records and a roster of every employee’s vaccination status, in the same manner as other confidential medical information. The ETS states that if an employer has already ascertained an employee’s vaccination status and retained records of that ascertainment, then it need not reconfirm vaccination status for those employees for which it has prior documentation.
- Support for vaccination through reasonable time off
Covered employers must provide employees with up to four hours of paid time off, separate from any other paid time off available to the employee, so that the employee can receive a primary vaccination dose. In addition, employees need to be allowed reasonable time and use of available paid sick leave to recover from any side effects from vaccination. This final requirement is consistent with current New York law mandates with regard to employees having separate paid time off for vaccination and being entitled to use available paid leave to recover from the side effects of such.
Employer Compliance Obligations
In developing their approach to vaccinations, employers must:
- Require that employees promptly provide notice when they receive a positive COVID-19 test or diagnosis;
- Remove from the workplace any employee who tests positive or is diagnosed with COVID-19, continuing until the employee meets return to work criteria (discussed below);
- Require that any employee who is not fully vaccinated wears a face covering (or face mask or respirator) when indoors and when occupying a vehicle with another person for work purposes. The face covering may only be removed if the employee is alone in a fully-enclosed workspace, for a limited time while eating or drinking or for security identification purposes, or if its use is not feasible or creates a greater hazard such as where the work requires use of the employee’s uncovered mouth or a face covering presents a risk of serious injury or death;
- Distribute literature about the requirements of the ETS, the employer’s responsive policies, the benefits of being vaccinated (by providing the CDC’s Things to Know document), protections against discrimination and retaliation for reporting violations or exercising rights under the OSH Act, and the laws that provide criminal penalties for knowingly providing false statements or documentation;
- Notify OSHA of work-related COVID-19 fatalities within eight hours of learning of them, and of work-related COVID-19 in-patient hospitalizations within 24 hours of learning of them; and
- Within one business day of receiving a request, make available for employees and their authorized representatives to examine and copy the individual’s COVID-19 vaccine documentation and test results, and, if additionally requested, provide the aggregate number of fully vaccinated employees and total headcount at a workplace.
Covered employers have until December 6, 2021 to comply with most provisions of the ETS, and were given a 60-day window until January 4, 2022 to comply with the testing requirement.
If an employee has been removed from the workplace due to a positive COVID-19 antigen test, the employee cannot return to the workplace until the employee either receives a negative result on a COVID-19 NAAT test, meets the return-to-work criteria in the CDC’s Isolation Guidance, or is cleared to return to work by a licensed healthcare provider. OSHA noted that the ETS does not require employers to provide paid time off to employees who are removed from the workplace due to a positive COVID-19 test or diagnosis. Under New York law, however, as discussed in our previous blog articles, employers are required to provide special paid leave in these circumstances for up to three instances of removal from the workplace.
In FAQs issued to accompany the ETS, OSHA outlined its expectation that an employer’s written vaccination policy will include: the effective date and who is covered; the requirements for COVID-19 vaccination, deadlines and applicable exclusions; information on determining an employee’s vaccination status and how the information will be collected; available leave for vaccination purposes; notification of positive COVID-19 tests and the requirement of removal from the workplace; all the information about requirements and protections specified as literature to be distributed; disciplinary action for employees who do not abide by the policy; and procedures for compliance and enforcement.
Payment for Testing Time and Expenses
One open issue under the ETS pertains to payment for the time employees spend getting tested weekly, and the costs of the tests themselves. OSHA stated that employers are not required, under the ETS, to pay for any costs associated with testing but other laws, regulations or collective bargaining requirements may impose such an obligation.
Exempt employees are, by definition, required to be paid their salary regardless of the number of hours worked in a particular day and, therefore, should not experience any reduction in pay for time spent testing for COVID-19, nor should they be entitled to any additional compensation for time spent outside their normal work hours undergoing weekly testing. For non-exempt employees, regulations issued by the U.S. Department of Labor (DOL) provide that “time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee’s normal working hours on days when he is working constitutes hours worked.” In its FAQs on COVID-19 and the Fair Labor Standards Act, the DOL states that time spent undergoing testing during the workday must be paid.
If the testing is being conducted before or after the non-exempt employee’s workday or on non-workdays, then the same FAQs from the DOL note that an employee is to be compensated if it is for time spent to perform tasks required by the employer that are necessary for the work the employee is paid to do. The obligation to compensate employees under the DOL’s test thus turns on the necessity of the screening or testing to enable the employees to perform their jobs safely and effectively. The DOL provides two examples, one involving a grocery store cashier and one a nurse, as instances in which testing or screening was “integral and indispensable” to the employees’ work and thereby compensable time even outside of regular work hours. Under the new OSHA ETS, vaccination or weekly testing arguably has been declared “integral and indispensable” to the jobs of all covered employees. Many employers have chosen to administer testing on premises during work hours, so as to obviate further deliberation over this issue. Absent further guidance from the DOL, employers that are considering an alternative approach that does not involve testing at work would be advised to consult with legal counsel on whether and when employees’ time needs to be compensated.
The federal wage and hour laws do not address paying for the cost of the test itself. Section 201-b of the New York Labor Law states that an employer cannot require an employee as a condition of continued employment to pay the cost of any medical examination or the cost of furnishing any health certificate where:
- the employee is not covered by any health insurance or the employee’s health insurance does not cover the exam/certificate or the employer does not provide qualified medical personnel to conduct the exam without cost to the employee, and
- the exam or certificate is not required by a state, local, or federal law.
A COVID-19 test likely falls into the category of a medical examination or health certificate. To the extent, however, that employees are covered by health insurance and their policy covers the cost of testing, the employer has no payment obligation. Where health insurance coverage does not apply, an employer might be able to assert that the federal legal requirement is vaccination or testing, and thus weekly testing is an option elected by the employee, not a legal requirement, and need not be paid for by the employer. This too is a position that employers should review with legal counsel.
The analysis is likely the same for testing that an employee obtains as clearance to return to work following a positive COVID-19 test or diagnosis, since in that context an employee also has an alternative option of waiting until the end of the recommended isolation period, in lieu of additional testing. New York City employers, however, additionally need to consider the Earned Sick and Safe Time Act. If the employer requires testing or clearance from a healthcare provider as a condition of returning to work, then the city law requires employers to reimburse employees for fees charged by healthcare providers for sick leave documentation that the employer requested.
Covered employers that have not already imposed a vaccination mandate have a very limited window in which to put their procedures in place. Those employers that already have protocols with regard to vaccinations and testing still have work to do, to confirm that their vaccination and testing records are in order and they have a compliant written policy, and to distribute the required literature to employees. Employers may also need to obtain legal advice with regard to compensating for the time and costs of employee COVID-19 testing.