Do a Double Take: Unraveling OSHA’s New Emergency Temporary Standard

This is article is part of a series summarizing key topics discussed at Ward and Smith's Fall Employment Law Update Webinar.

Several Ward and Smith attorneys delivered their take on what the new Emergency Temporary Standard could cover, how it might be implemented, and its various implications for labor and employment at the firm's Fall Employment Law Update.

The webinar, centered on the Occupational Safety and Health Administration's ("OSHA") guidance to fight the spread of COVID-19, focused on several main areas:

• expectations for coverage,
• vaccine mandates for federal contractors,
• health care employers,
• testing and payment requirements,
• wage and hour issues,
• employers obligations, and
• proof of vaccination.

Ken Gray, a labor and employment attorney who leads Ward and Smith’s Labor and Employment Practice Group, initiated the chat by stating that OSHA has not yet issued the new Emergency Temporary Standard (ETS), even though it has been over a month since President Biden announced his strategy and provided the outline.

“These are educated guesses to some extent,” Gray explained. “The purpose here is to get you thinking about these issues because you do not want to put your head in the sand and wait until OSHA issues that ETS.” Proactive business owners should immediately develop a plan about how to respond and have a contingency plan depending on which way issues turn, he said. 

Expectations for Coverage

Devon Williams, co-managing director and a labor and employment attorney, began her analysis by noting that since the purpose of the anticipated ETS is to vaccinate as many workers as possible, it will likely cover a broad range of employees. Understanding that the new ETS will apply to employers with 100 or more employees, the question of how the headcount is determined becomes an issue.

Williams expects that OSHA will find a way to ensure that employers with 100 employees prior to the announcement, or with 100 or more current employees, would fall under the coverage. She commented that “[t]he idea is that OSHA does not want employers to drastically drop their headcount to avoid coverage under the ETS.”

Mandatory Vaccinations for Federal Contractors

X. Lightfoot, an employment and personal injury attorney, spoke about a recent executive order from President Biden requiring federal contractors to get the vaccine and provided guidance regarding those requirements.

Essentially, federal departments and agencies must include a clause in contracts stating that the contractor and any subcontractors (at any tier) shall incorporate into lower-tier subcontracts.  The clause must specify that the contractor or subcontractor will comply with guidance issued by the Safer Federal Workforce Task Force. Some of the key provisions from the Task Force guidance includes:

• Covered employees must be fully vaccinated for COVID-19 by December 8, 2021, unless the employee is legally entitled to an accommodation.
• Individuals must comply with masking and physical distancing guidance while in covered contractor workplaces.
• Covered contractors must designate a person to coordinate implementation of and compliance with Task Force guidance.

The guidance applies to many different individuals employed by federal contractors. Also, it identifies various types of arrangements that would be considered contracts or contract-like instruments to include procurement actions, lease agreements, cooperative agreements, provider agreements, inter-governmental service agreements, and more.

Both full-time and part-time employees who work on a covered contract or in connection with a covered contract are covered under the Task Force guidance. “This generally includes those employees who perform specific duties on the actual covered federal contract, but also employees who perform duties necessary to the performance of the covered contract such as human resources, legal, and billing personnel,” explained Lightfoot.

Even if an employee does not work at a site where a federal contract exists, they would be required to get the vaccine if there is a possibility of interacting with an employee covered by the guidance. In addition to understanding the timing requirements for vaccinations, Lightfoot pointed out that there are a number of actions contractors should take to prepare, such as:

• Review existing and new government contracts
• Designate compliance person(s)
• Determine which employees and/or worksites are covered
• Monitor Task Force Guidance
• Develop a communication plan to inform employees of vaccination requirements and timelines

“It may not be the case that all of your employees are covered,” adds Lightfoot, “but this is intended to apply very broadly.”

Health Care Employers

Ken Gray began the discussion by indicating that the standards for the healthcare industry will come from the Centers for Medicare and Medicaid Services (CMS). It will apply to most health care providers, as most receive Medicare or Medicaid payments.

Gray evaluated the implications of an ETS that OSHA issued in June of 2021 in regards to the healthcare industry. This ETS applies to settings where employees provide health care services or health care support services, such as billing insurance and human resources.

There are many exceptions to which the ETS does not apply, including non-hospital ambulatory care settings where all non-employees are screened prior to entry, home health care settings where all employees are fully vaccinated, and all non-employees are screened and not permitted if they are suspected or confirmed, and telehealth services performed outside of a setting where direct patient care occurs. It does not apply to dispensing of prescriptions by pharmacists in retail settings or for support services provided in a different facility than where the patients are being treated.

A key takeaway from this ETS is that healthcare employers should have a written Covid-19 plan. It is very detailed as far as what must be in the plan, mentioned Gray. “The most remarkable piece of this is that if you have someone that’s exposed in the workplace and gets COVID-19, you cannot terminate them,” said Gray. Also, if someone was hospitalized as a result of the virus, the ETS states that they may not be terminated even if it goes on for months unless they acknowledge they are not coming back to work.

Depending on the size of the healthcare employer, the ETS also requires employers to pay the employee the same regular pay they would have received had the employee not been absent from work, up to $1400 per week.

Testing and Payment Requirements

Emily Massey, a labor and employment attorney, provided her take on the possible testing requirements in the anticipated ETS. Testing would only apply to employers 100+ employees who provide their employees with the option to either produce a weekly negative test result or proof of vaccination; it would not apply to federal contractors who are required to implement mandatory vaccinations.

Massey expects that the ETS will specify exactly what types of tests are acceptable, whether PCR or rapid home tests. “As an example, the CDC has an order for international travel, indicating that rapid tests and home tests are acceptable as long as they are antigen tests or nucleic acid amplification tests,” says Massey, “so we expect something similar from the ETS.”

Home tests will probably not be acceptable, or there will be stringent requirements for authenticating the test taker's identity, predicted Massey. “Think of a drug test and not being allowed to bring your own urine specimen from home,” she said.

Similar to the international travel order, Massey believes a home test will only be accepted if the individual has a telehealth conference with a healthcare provider who confirms their identity.

“The next question this raises is, will the employer be required to pay for the test itself? The short answer we expect is yes. Generally, when an employer requires a medical-related test such as a drug test, it must pay the cost,” explained Massey.

Since the focus of the ETS is to encourage vaccinations, there will be significant requirements placed on employers to meet the weekly testing standard. Employers should expect to pay non-exempt employees for time spent undergoing testing during the workday; they should also expect to provide compensation for testing on an employee’s day off if testing is required before they are allowed to return to work.

Wage and Hour Issues

Justin Hill, a labor and employment attorney, believes that employers with 100 or more employees will have around two to three months to vaccinate their workforce fully. However, he does anticipate that the ETS will include a grace period of 30 to 60 days.

To ensure they meet the timeline, employers should be proactive. Waiting until the last minute may not work, as the current definition of fully vaccinated refers to the 14 days after the second dose of the Pfizer or Moderna shot.  

Regarding the executive order issued by President Biden, Hill commented that “the goal is to get as many people vaccinated as possible, but the deterrent of having to pay for it is something the President wants to try to avoid.”

The burden of payment will likely be passed on to the employers, and they will have to provide time off for employees to get the vaccine and recover. A precedent has already been set for what is considered reasonable time off: four hours for each dose. It’s not just time spent receiving the injection, explains Hill; it’s also time spent making the appointment, registration time, paperwork, and travel time. 

“Basically, eight hours after each shot or one standard workday is what has been allowed,” added Hill, referencing a number of states that already have statutes that either allow time specifically for recovery following COVID-19 vaccinations or allow sick leave statutes to be used for that time.

Other Employer Obligations

Grant Osborne, a labor and employment attorney, centered his discussion on what kinds of policies employers should have with respect to the upcoming ETS. “There are very few personnel policies that are required by law,” said Osborne, “but there are many that are highly recommended.”

To be proactive and minimize risk-exposure, prudent employers should have written policies addressing the ETS. Some of the issues that an effective ETS policy should cover include how to respond if an employee:    

• Refuses the vaccine, tests positive, and is symptomatic
• Refuses the vaccine, tests positive, and is symptomatic but is willing and able to perform job duties remotely, away from co-workers, customers/patients/clients, and vendors
• Accepts the vaccine and then claims to have become ill and/or disabled as a result

Many other situations should be covered in a comprehensive personnel policy, advised Osborne. “The bottom line is to address the issues implicated by the ETS, to ensure that employees understand their obligations and help the employer to avoid misunderstandings and related disputes as much as reasonably possible,” he said.

Proof of Vaccination

Will Oden, a labor and employment attorney, concluded the discussion with comments regarding proof of vaccination.

A written attestation of vaccination is not acceptable; however, a copy of the vaccination card is sufficient.  When collecting proof of vaccination, Employers need to limit the number of individuals involved in the collection process.  Documentation regarding COVID-19 vaccinations must be kept separately from an employee's personnel file so that it does not create the appearance that medical information is forming the basis for an employment decision.

A question Oden has received from employers is whether it is advisable for employers to require employees to wear wristbands or badges to show their vaccination status. “That is not advisable, as it raises privacy concerns and has every potential to worsen employee tensions on this often divisive subject,” Oden explained.

For those who wonder what sort of punishment should be doled out to an employee who falsifies a COVID-19 test result or proof of vaccination, Oden answered that “similar circumstances should result in similar discipline. Otherwise, you risk potential Title VII discrimination issues.”

The ETS will probably include full-time, part-time, and temporary/short-term employees. Employers with independent contractors should exercise careful scrutiny to ensure they are not actually employees, rather than contractors because if OSHA (or other agencies) finds that misclassification was done willfully to avoid compliance with the ETS, the penalties could be severe.

Those employers who work with staffing companies may think the ETS will not apply to them; however, the same obligations for compliance may likely apply.

--
© 2024 Ward and Smith, P.A. For further information regarding the issues described above, please contact X. Lightfoot.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

We are your established legal network with offices in Asheville, Greenville, New Bern, Raleigh, and Wilmington, NC.