Large Employers, the OSHA Emergency Temporary Standard Has Dropped!

Today is the day! No, not Halloween (yes, all my kid’s candy is gone). Not my birthday.

Today, the Occupational Safety and Health Administration (OSHA) issued its Emergency Temporary Standard (ETS) effectuating President Biden’s Executive Order requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated against COVID-19 or submitting to weekly testing.

Large employers, this post is for you!

While I have yet to read the entire 490 page rule, helpfully sent to me from my employment law partner David Renner, the Executive Summary informs of OSHA’s rationale to include only employers of such size:

OSHA is confident that employers with 100 or more employees have the administrative capacity to implement the standard’s requirements promptly, but is less confident that smaller employers can do so without undue disruption.

This, OSHA claims, will reach and protect about 2/3 of all private sector workers, especially in large workplaces where one outbreak can affect so many people.

What Does The ETS Require?

Getting to the actual requirements, the White House has provided large employers with a helpful fact sheet (here) to meet the ETS requirements (h/t Gordon Berger):

  1. Employees must be vaccinated by January 4, 2022;
  2. Unvaccinated employees must produce a “verified” negative test on (at least) a weekly basis. Helpfully, the ETS itself provides details on the variety of tests that comply with this requirement;
  3. Employers must pay employees for time taken to get vaccinated, and, if needed, recover from any side effects—starting on December 5, 2021;
  4. Ensure unvaccinated employees wear masks at all times in the workplace; and
  5. There are significant reporting and record-keeping requirements (here).
Image by MaximeUtopix from Pixabay

As they say, the devil is in the details, and when I comb through the entire 490-page document, I’ll update you. And, I suspect, our employment group will produce another FREE and fantastic webinar on my partner Eric Meyer‘s YouTube channel, https://bit.ly/TheEmployerHandbookYouTube.

WHO is a “Large” Employer?

One of the top questions we’ve seen from employers has been: how do we calculate 100+ employees? Is it by location? Do remote employees count?

As suspected, the ETS advised that in calculating the number of employees, employers must include all employees across all of their US locations, regardless of where they perform work.

Part-time employees count.

Independent contractors do not count.

For franchises, the franchisor and franchisees would be considered separate entities, and each franchisee would only count employees of that individual franchise. The ETS provides some helpful examples (yay!):

  • If an employer has 75 PTEs + 25 FTEs, the employer would be within the scope of this ETS because it has 100 employees;
  • If an employer has 150 employees, 100 of whom work from home full-time + 50 who work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees;
  • If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered;
  • If an employer has 150 employees, and 100 perform maintenance work in customers’ homes, mostly working from their company cars, and rarely or never report to the office, the employer would fall within the scope;
  • If an employer has 200 employees, all of whom are vaccinated, that employer would be covered; and
  • If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered.
Image by David Mark from Pixabay

So, as you can see, even where the standard applies to an employer, its requirements do not apply to employees: (i) who do not report to a workplace where there are other humans (including customers); (ii) while WFH; or (iii) who work exclusively outdoors.

Oh, readers, there is so much more. For a list of some other factoids to consider, see this prior post, which we’ll expound on soon.

Is There Still “Grave Danger” From COVID-19?

To issue an ETS implementing the COVID-19 vaccine mandate/weekly testing requirement, OSHA must determine that employees are in “grave danger” of COVID-19. Some wondered if, with declining numbers of deaths due to COVID-19, if OSHA would find still that this standard had been met. “

The ETS is clear: yes,100%, COVID-19 continues to pose a grave danger to American workers. The ETS states:

OSHA has found that regardless of where and how exposure occurs, COVID-19 can result in death. Even for those who survive a SARS-CoV-2 infection, the virus can cause serious, long-lasting, and potentially permanent health effects. Serious cases of COVID-19 require hospitalization and dramatic medical interventions, and might leave employees with permanent and disabling health effects. Both death and serious cases of COVID-19 requiring hospitalization provide independent bases for OSHA’s finding of grave danger. The evidence is clear that the safe and effective vaccines authorized and/or approved for use in the United States greatly reduce the likelihood of these severe outcomes.

The statistics are harrowing. According to the ETS and the Centers for Disease Control and Prevention (CDC), as of October 18, 2021:

  • Unvaccinated folks of working age have a 1 in 202 chance of dying when they contract COVID-19;
  • Nearly 45 million US residents have been infected as of October 18, 2021;
  • 1 in 14 reported people infected, age 18-64, require hospitalization; and
  • health officials believe these numbers do not show the full extent of deaths or the full impact of the extent of COVID-19 on racial and ethnic minority groups. (See here and here.)

So, OK, OSHA confidently determined that, accordingly, COVID-19 continues to pose grave danger to the employees covered by the ETS.

Y’all, there is so so much more. But, I wanted to start with this information.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.