The COVID-19 vaccination and testing emergency temporary standard (ETS) issued by federal OSHA is creating plenty of questions. Many of them are related to the standard’s testing alternative, while others deal with possible exemptions or how the ETS applies in certain states or jurisdictions. Below, we aim to answer some of the most common questions.
Note: This article assumes a general understanding of the ETS. For a breakdown of the standard’s requirements, including its potential impact and the legal battle over its implementation, see our December article, “Key Details and Analysis of OSHA’s Vaccine ETS”.
Are employers required to provide workers with a testing option?
No. Employers can choose to mandate vaccination to avoid weekly testing and masking indoors. Employers are still required to provide exemptions for valid medical or religious accommodations.
Who pays for weekly testing and face coverings – employers or workers?
Generally, employers have the option to pay but aren’t required to, so under the ETS, they can have workers bear the cost of testing and/or face coverings. An exception would be if local laws or collective bargaining agreements require employers to cover these costs. This creates a strong incentive for workers to get vaccinated and for employers to choose a vaccine mandate over the regular testing option.
What kind of weekly testing is acceptable? Can workers use home tests?
Any FDA-approved test is acceptable, including over-the-counter home tests. All testing must be done by a certified lab or under the supervision of a licensed healthcare provider or the employer; home tests can’t be administered privately by the worker with only the results reported to the employer.
Another option available is “pool testing” – combining the specimen from several people and conducting one lab test on the combined pool. If the pooled specimen is negative, all workers who participated are considered negative. If the pooled specimen is positive, additional individual testing is required.
Does the ETS allow employers that mandate vaccination to disregard medical or religious exemptions?
No. Federal law still requires employers to consider and possibly accommodate valid exemption requests on the basis of a medical condition or sincerely held religious belief. Employers should make sure vaccination and testing policies related to the ETS explain how workers can request exemptions in the form of reasonable accommodations.
If an employer has 100 or more workers, do all of those workers have to follow the provisions of the ETS?
With a couple of exceptions, yes. The requirements don’t apply to fully remote workers who never visit the office or meet with customers. The requirements also don’t apply to workers who work exclusively outdoors. Note that “exclusively outdoors” means workers can’t spend any time indoors, even briefly. Workers who work outdoors on some days and indoors on others, occupy work vehicles with coworkers or work in partially enclosed buildings (e.g., buildings under construction) don’t qualify as “exclusively outdoors.”
Can workers be exempted if they’ve had COVID-19 previously?
No, because “natural immunity” isn’t as effective as vaccination. However, workers who have tested positive for COVID-19 within the last 90 days don’t have to undergo weekly testing. These workers would still have to wear a face covering in the workplace if they aren’t vaccinated.
How is the number of workers calculated for purposes of falling under the ETS? What about multi-employer sites?
The 100 employee threshold is based on the employer, not the location, so employers will need to count all workers across the organization, including part-time workers. On multi-employer sites like in the construction industry, each company represented (e.g., general contractor, subcontractor) only counts its own employees, not the total number of workers on the job site.
For employers that have already collected workers’ vaccination status, do they need to do so again to comply with the ETS?
No. If an employer already has proof of vaccination status on record, they are not required to re-survey workers. Workers without a valid vaccination status on record must be treated as unvaccinated (e.g., test weekly, wear a mask indoors) until that record is provided.
How does the ETS apply in states with OSHA state plans?
State-run OSHA programs generally have 30 days to adopt emergency standards or issue similar standards that are at least as effective. If they don’t, federal OSHA can take steps to terminate the state-run OSHA program. This is exactly what federal OSHA has threatened to do in the case of three states that refused to implement the ETS issued earlier this year for the healthcare industry.
In the case of the vaccination and testing ETS, several states (including states with state-run OSHA programs) are suing federal OSHA on the grounds that the ETS is unconstitutional. While that process plays out, it’s likely that many employers in states with state-run programs that should fall under the requirements of the ETS will not have to comply. Employers with operations in multiple states will need to pay special attention to the varying standards and timeframes for each state.
Can implementation of the ETS be considered a collective bargaining issue?
Yes, according to a memo from the National Labor Relations Board (NLRB). Because employers have an option to mandate the vaccine or conduct testing, the NLRB’s position is that the ETS offers enough discretion that employers can’t take action in unionized workplaces without going through the bargaining process.
[Travis Parsons and Nick Fox]