On Sept. 9, U.S. President Joseph Biden issued a memorandum entitled “Path out of the Pandemic,” which addresses the White House’s strategy for combating the ongoing global health crisis caused by COVID-19. Most significantly, Biden’s plan expressly directed the Occupational Safety and Health Administration to develop an emergency rule in order to increase the number of vaccinated workers in the private sector.
Similar to the rollout of the vaccination mandate for health-care workers, President Biden instructed OSHA to issue the rule through the Emergency Temporary Standard procedure, which allows OSHA to enact and enforce regulations immediately where a “grave danger” to worker safety is present.
In mid-October, OSHA completed its rule and sent it to the White House’s regulatory office for final review. On Thursday, Nov. 4, the ETS was released for publication in the Federal Register.
At a Glance: OSHA’s Emergency Temporary Standard
OSHA’s ETS, at a minimum, requires that as of Jan. 4, 2022, all private employers with 100 or more employees need to either ensure that their employees are vaccinated or require unvaccinated employees to submit to weekly testing and provide evidence of a negative result before coming to work. Unvaccinated employees are also required by the ETS to wear a face mask while in the workplace.
The ETS takes effect immediately and may remain in place for up to six months in the 29 states where federal OSHA has jurisdiction. Of those states not covered by OSHA’s jurisdiction due to state plans being in place, the state agency will be required to either adopt the ETS in full or implement “standards that are at least as effective as federal OSHA requirements” by Dec. 5.
Calculating the 100 Employee Threshold
The release of the ETS confirmed that the 100-employee threshold will be counted on a companywide basis rather than counting employees at any individual location. The ETS also makes it clear that part-time employees are included in the total employee count while independent contractors working onsite are not. Should an employer have a fluctuating workforce, as is common in the hospitality industry, an employer’s obligation under the ETS will only be triggered if the employer has 100 employees. However, should an employer have fewer than 100 employees and subsequently hire more such that the employee count reaches 100, the employer will be required to follow the ETS. Importantly, once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce thereafter.
Where it is common practice in the hospitality industry to establish limited liability companies at each operating location, OSHA’s consideration of these entities and their parent members for purposes of identifying potential ETS compliance will need to be tracked on a case-by-case basis. It is also unclear whether OSHA will rely solely on traditional practices in counting employees or supplement its practices by deploying a joint-employer analysis to broaden the scope of employers subject to the ETS.
Testing: Who Absorbs the Cost?
In a Sept. 10 webinar, Labor Department officials implied that the ETS would address the issue of COVID-19 testing costs. Specifically, it was anticipated that the ETS would delineate who is responsible for absorbing the actual costs of tests themselves and whether time spent undergoing testing is compensable. In terms of the tests themselves, the ETS is explicit in that employers are not responsible for the cost, but that employer payment for testing may be required by other laws, regulations or collective bargaining agreements or other collectively negotiated agreements.
With respect to whether time spent testing is compensable, the ETS is silent. While additional guidance from OSHA and the Department of Labor is forthcoming and will dictate practice, testing protocols generally must comply with applicable wage and hour laws. Such laws provide that time spent receiving employer-required tests should be treated as compensable time including time spent waiting for and receiving medical attention at an employer’s direction or on its premises during working hours. In the same vein, compensability may also extend to testing occurring on employees’ days off if such testing is necessary for employees to perform jobs safely and effectively during the pandemic. Where the hospitality industry necessarily involves repeated interactions and a clientele that is transient in nature, testing, where required on off-days, is likely required for those employees to perform their jobs safely.
Paid Time Off
Employers subject to the ETS are required to provide four hours of paid time off to employees to get vaccinated and an additional two days of PTO to recover from side effects caused by vaccination. The ETS indicates that an employer may require that an employee use existing PTO to meet these requirements, but where an employee has exhausted all PTO or has an insufficient or nonexistent PTO bank, the time must be provided by the employer regardless. The issue is of particular interest where those in the hospitality industry employ both part-time and full-time employees and an employer’s existing policy may not provide PTO benefits to part-timers. Notably, the ETS does not require PTO for COVID-19 testing, only vaccination and recovery thereof.
Bargaining Unit Implications
The ETS does not change any collective bargaining agreement obligations, which is consistent with all other OSHA standards. For unionized business generally, including those in the hospitability space, the Labor Department has yet to comment on whether implementing the ETS triggers bargaining obligations pursuant to the National Labor Relations Act. Where the ETS is discretionary insofar as it requires vaccination and/or weekly testing, unionized workforces will likely argue that the issue is subject to bargaining. Unionized employers should also keep in mind that where the ETS does not alter collective bargaining agreements, its obligation to pay for medical testing and/or face coverings and compensate employees for time tested as provided in an active agreement remains intact.
Legal Challenges
Unsurprisingly, the first legal challenge has already been filed. On Nov. 5, Kentucky, Idaho, Ohio, Oklahoma, Tennessee and Virginia filed an emergency motion for stay of the ETS pending final judgment, which asks the court to put the ETS on hold until the legal merits of the challenge are decided. The motion was granted the next day. It is unclear how the court will respond to argument; however, more challenges are likely to follow. Given the uncertainty, employers should remain focused on meeting the compliance requirements of the ETS rather than banking on judicial intervention.
How to Prepare:
1. Vaccination Status
In preparing for and complying with the ETS, employers should begin by asking their employees whether they are vaccinated. The Equal Employment Opportunity Commission has acknowledged that asking employees about their vaccination status is permitted. Additionally, employers should alert their employees of the need for documentation supporting their vaccination status and make clear that the request is limited to COVID-19 inoculation only.
2. Mandate or Testing?
Employers subject to the ETS will need to consider whether they want to implement a mandatory vaccination policy or provide employees with the choice of vaccination or weekly testing. Employers should consider the potential loss of key employees who oppose a mandatory vaccination policy, the administrative burden of tracking weekly testing and the potential costs associated with weekly testing before making a decision. Employers may also want to consider implementing different policies for employees in different positions or operations. For example, the ETS permits the employer to enact one policy for those employees who have customer contact and a different one for corporate employees. Or, for facilities facing labor shortages, the company could adopt a soft mandate policy and let the employees choose while imposing a hard mandate at other locations.
3. Develop, Revise and Notify
Once a decision is made as to what policy or policies will be implemented, employers must develop a written policy and/or revise their written policy by Dec. 5, 2021. Additionally, the ETS requires that employers notify their employees of the new policy as well as several other items listed in the ETS.
4. Tracking Data
Employers will need to develop a protocol and secure method for housing vaccination and testing information including ensuring that employees who undergo weekly testing are submitting their results in a timely manner. This may require establishing a portal-like database for uploading test results and notifying employees of the potential for disciplinary action when test results are not reported timely.
Dena B. Calo is a partner at Saul Ewing Arnstein & Lehr. Zachary M. Kimmel is an associate at Saul Ewing Arnstein & Lehr.