[Update: On November 6, 2021, the United States Court of Appeals for the Fifth Circuit blocked the implementation of the OSHA Emergency Temporary Standard (ETS) that would require employers with 100 or more employee to implement a mandatory COVID-19 or weekly testing employees. Our update on the court’s ruling is here.]
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued the Emergency Temporary Standard (ETS) that implements the Biden Administration’s COVID-19 vaccine mandate for large employers: employers with 100 or more employees. The OSHA ETS will be published in the Federal Register and becomes effective, November 5, 2021. Employer obligations begin on December 5, 2021. Below is a brief overview of the OSHA ETS and what this could mean for California employers.
1. OSHA ETS vaccine mandate.
The OSHA ETS required covered employers (employers with 100 or more employees) to ensure all employees have been vaccinated by January 4, 2022. Employees who have not received all necessary shots to be vaccinated must be tested on at least a weekly basis. Should an employee test positive, they will need to be removed from the workplace. All unvaccinated employees are required to wear face masks in the workplace.
2. Employers are required to pay for time for employees to obtain vaccine.
Starting December 5, 2021, employers are required under the ETS to provide “reasonable time” to each employee during work hours for each of their primary vaccination doses. OSHA’s FAQs state that a “reasonable time” includes up to four hours of paid time, at the employee’s regular rate of pay, for the purposes of vaccination. OSHA also explains that employers do not need to pay the employee if they obtain the vaccination outside of work hours.
The four hours of paid time that employers must provide for time off to receive the vaccination cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave.
3. Employers are required to pay for time off to recover from vaccine side effects.
If an employee experiences side effects after receiving the vaccination, the employer must pay employees for time off work. Generally, OSHA presumes employers who provide for up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with the requirement to provide a “reasonable cap” on paid time off. When setting the “reasonable cap,” the employer does not need to account for the possibility of the vaccination resulting in a prolonged illness in the vaccinated employee (e.g., a severe allergic reaction). The reasonable time and paid sick leave that employers are required to pay employees to recover from side effects is in addition to four hours of paid time to receive each primary vaccination dose also required by the standard
For purposes of time off due to side effects of receiving the vaccine, employers can require employee to use accrued paid sick leave. To the extent employees do not have any accrued paid sick leave, employers cannot require employees to run a negative balance of accrued sick leave for these purposes. This requirement to pay employees does not apply retroactively for leave taken prior to December 5, 2021.
The OSHA ETS does not require employers to pay for COVID-19 testing. However, other laws could require employers to pay for this testing – and California employers must approach this issue with caution.
4. Employers must provide employees certain information about COVID-19 vaccinations.
Covered employers must provide each employee, in a language and at a literacy level the employee understands any policies and procedures the employer establishes to implement the ETS. This includes:
- any employer policies;
- the process that will be used to determine employee vaccination status, as required;
- the time and pay/leave they are entitled to for vaccinations and any side effects experienced following vaccinations;
- the procedures they need to follow to provide notice of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider;
- and the procedures to be used for requesting records.
Employers must provide additional information to unvaccinated employees, including information about the employer’s policies and procedures for COVID-19 testing and face coverings.
In addition, OSHA states that the information provided to employees must address:
- COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated (by providing the document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html);
- the requirements of 29 CFR 1904.35(b)(1)(iv), which prohibits the employer from discharging or in any manner discriminating against an employee for reporting work-related injuries or illness, and Section 11(c) of the OSH Act, which prohibits the employer from discriminating against an employee for exercising rights under, or as a result of actions that are required by, the ETS. Section 11(c) also protects the employee from retaliation for filing an occupational safety or health complaint, reporting a work-related injuries or illness, or otherwise exercising any rights afforded by the OSH Act (fact sheet available in English and Spanish); and
- the prohibitions of 18 U.S.C. § 1001 and of Section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation (fact sheet available in English and Spanish).
5. Does the federal OSHA ETS preempt Cal-OSHA ETS and local county and city vaccine mandates?
OSHA and the White House have been clear that the federal OSHA ETS preempts any state and local laws on the issue. During a call with reporters on November 3, 2021, a senior administration official stated:
The OSH Act provides that OSHA standards preempt any state occupational safety or health standard “relating to [the same] occupational safety or health issue” as the federal standard OSHA.
This ETS preempts the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19. Thus, the standard preempts states, and political subdivisions of states, from adopting and enforcing workplace requirements relating to these issues, except under the authority of a federally approved state plan.
However, California employers will need to monitor the response from Cal/OSHA regarding what actions it will take because of the federal OSHA ETS. The current Cal/OSHA ETS does not require employers of any size to mandate vaccines or require testing for employees who are not vaccinated. Cal/OSHA could decide to adopt the federal OSHA ETS, or it could adopt a modified version that meets the requirements of the federal OSHA ETS with additional restrictions. Employers need to monitor Cal/OSHA’s response over the next 30 days. A collection of articles discussing the Cal/OSHA ETS is available here. However, employers subject to the federal OSHA ETS should begin steps to comply with these requirements while also ensuring compliance with California’s additional requirements.
Moreover, there is a patchwork of various county and city requirements for vaccine mandates for employers across California. There is an argument that these local requirements applicable to employers are preempted by the federal OSHA ETS. However, employers are cautioned to seek legal counsel before deciding not to comply with any requirement from the state of California or a local jurisdiction.
Resources for Employers:
OSHA publish FAQs on the new ETS here.
For some suggestions on developing a mandatory vaccination policy, see our prior post here.
Also, my firm will be conducting a webinar on new laws facing California employers in 2022 on Wednesday, November 17, 2021. We will be discussing the federal OSHA ETS during the webinar. Registration for the webinar is here.