On November 4, 2021, the Occupational Safety and Health Administration (OSHA) published its long-awaited COVID-19 Vaccination and Testing Emergency Temporary Standards (ETS) for covered private employers, including nearly all private employers with 100 or more employees. The ETS is available here. The ETS sets forth workplace safety protocols mandating covered employers to implement workplace policies by January 4, 2022, requiring employees present in the workplace to be vaccinated or tested regularly. PilieroMazza’s Labor & Employment Group addresses the critical implications of the ETS for federal contractors.

Does the ETS apply to federal contractors?

It depends. According to the ETS, it does not apply to contractor workplaces subject to Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (EO 14042). This means that workplaces where contractor employees are likely to perform work on or in connection with a contract covered by EO 14042 are not subject to the ETS. Contractor workplaces not subject to EO 14042 requirements (or not yet subject to the requirements) would still be covered by the ETS. While EO 14042 requirements are generally more onerous than the ETS (since the ETS includes a testing alternative), it is notable that employees who work at these workplaces and are entitled to an exemption from the vaccination requirement for religious or medical reasons seem not to be subject to a testing requirement in lieu of vaccination (unless otherwise required by the employer, facility, or the client).

Additionally, the ETS does not apply to employees:

  1. who do not report to a workplace where others are present;
  2. while working from home; or
  3. who work exclusively outside.

There is also an exception for certain healthcare support services employees who are covered by the previous Healthcare ETS.

What does the OSHA ETS require?

According to the ETS, covered employers (i.e., employers with 100 or more employees) must, by January 4, 2022, develop, implement, and enforce either:

  1. a mandatory COVID-19 vaccination policy (i.e., a policy requiring each employee to be fully vaccinated as soon as practicable) or
  2. a policy requiring employees to either get vaccinated or undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

Employers must require each vaccinated employee to provide proof of vaccination status. Alternatively, if an employee cannot produce proof of their vaccination status, the employee may produce an attestation of their vaccination status attesting that they lost their vaccination card and cannot produce proof of vaccination. Employees who fail to provide such proof or an attestation are considered to be unvaccinated.

If a covered employer chooses to allow COVID-19 testing as an alternative to vaccination, employees who report to the workplace at least once every seven days must be tested on a weekly basis. Employees who report less than once every seven days must be tested within seven days before returning to the workplace. Covered employees who fail to provide such information may not work onsite.

Effective December 4, 2021, the ETS also requires employers provide employees with at least four hours of paid time off to get vaccinated. This leave is in addition to leave otherwise available and may not be offset by any other sick leave or vacation that the employee has accrued.

What else should we know?

Deadline for Federal Contractors Extended: The roll-out of the ETS has led to an unanticipated extension for federal contractors to come into compliance with EO 14042. The initial December 8, 2021 deadline has been extended to January 4, 2022 to be consistent with the ETS deadline. Furthermore, guidance issued earlier this week affords contractors additional flexibility when working towards compliance.  

Accommodations: The ETS addresses employer obligations to accommodate employees with a disability or sincerely held religious beliefs that prevent them from getting the vaccine, absent an undue hardship. The ETS also exempts employees

  1. for whom a vaccine is medically contraindicated (i.e., a condition or circumstance which would prevent them from receiving the vaccine) and
  2. for whom medical necessity requires a delay in vaccination.

Masking Requirements: Covered employers must ensure that each employee who is not fully vaccinated properly wears a face covering (e.g., face masks, face shields, and respirators) when indoors and when occupying a vehicle with another person for work purposes.

Testing Costs: The ETS does not require covered employers to pay for any cost associated with testing. However, importantly, other laws, regulations, or collective bargaining agreements may require the employer to pay for testing costs.

Reporting Obligations: After receiving an employee request, covered employers must, by the next business day, produce the requestor’s COVID-19 vaccination documentation and test results, as well as, where requested, the aggregate number of fully vaccinated employees at the workplace along with the total number of employees at that workplace.

As the federal government’s response to the COVID-19 pandemic continues to evolve, PilieroMazza’s Labor & Employment Group is monitoring the situation and is available to provide assistance as companies navigate compliance and related pitfalls. Visit the links below for additional coverage on this topic.

  1. WEBINAR REPLAY: Vaccination Mandate Update
  2. New Vaccine Mandate Guidance Issued for Federal Contractors: 5 Things You Need to Know
  3. What President Biden’s Vaccine Mandate Means for Government Contractors and Private Employers
  4. Return to Work: Employer-Mandated COVID Vaccination Policies and Accommodating Employee Disabilities and Religious Beliefs