The federal Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) obligating employers with 100 or more employees to require the COVID-19 vaccination for employees or, alternatively, weekly testing and masking for their unvaccinated employees.

The information below is an update on what is required by OSHA’s ETS, steps of how a city can implement and comply with ETS requirements, when a city must meet and negotiate with unions on implementation of mandatory vaccine/testing policies, and whether a city must pay for employee costs associated with mandatory vaccination and/or testing.

The following are sample documents cities can utilize that are referenced in this alert:

I. What does OSHA’s ETS require?

Covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, or, in the alternative, a policy requiring employees to either get vaccinated or undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

Minnesota OSHA (MNOSHA) must adopt standards that are “at least as effective as” federal OSHA.

According to OSHA’s ETS fact sheet, the ETS requires that employers do the following:

  • Implement a mandatory COVID-19 vaccination policy, with or without an exception allowing employees to instead undergo weekly COVID-19 testing and wear a face covering at the workplace.
  • Create a list showing the vaccination status of each employee, obtain proof of vaccination and maintain these records.
  • Provide employees with up to four hours of paid time off to receive each primary vaccination dose and paid sick leave to recover from any side effects experienced following each primary vaccination dose. Booster shots are not covered in this requirement.
  • Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer).
  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
  • Immediately remove from the workplace any employee, regardless of vaccination status, who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider, and keep the employee out of the workplace until the return-to-work criteria are met.
  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
  • Provide each employee with information they can understand about the requirements of the ETS and the workplace policies and procedures established to implement the ETS; vaccine efficacy, safety and the benefits of being vaccinated by providing the Centers for Disease Control and Prevention (CDC) document Key Things to Know About COVID-19 Vaccines; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report work-related COVID-19 fatalities to OSHA within eight hours of the employer learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about them.
  • Make records available to an employee or an employee representative for examination and copying.

II. What is the legal status of the ETS?

Federal OSHA issued the ETS on Nov. 5, 2021. The U.S. Court of Appeals for the Fifth Circuit Court issued a stay of implementation of the ETS on Nov. 6, 2021. On Dec. 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS. MNOSHA now plans to adopt the ETS by reference as soon as Jan. 3, 2022. The U.S. Department of Labor has indicated OSHA will not issue citations for noncompliance with any of the requirements until Jan. 10, 2022, and it will not issue citations for the testing requirements until Feb. 9, 2022, so long as businesses are making “good faith” efforts to implement the rules. To account for any uncertainty created by the stay, MNOSHA will exercise similar enforcement discretion with respect to the compliance dates and will follow federal OSHA’s timeline.

The U.S. Court of Appeals decision dissolving the stay of the ETS has been appealed to the U.S. Supreme Court. MNOSHA will react accordingly to further judicial determination as the current litigation makes its way through the process.

III. How should a city implement ETS requirements?

Taking the following steps will help a city comply with ETS requirements:

A. Determine Whether City is a Covered Employer

A covered employer under the ETS is an employer with 100 or more employees. A city should count all employees individually, whether they are full time, part time or working on a temporary basis. Independent contractors are not counted.

B. Determine Employee Vaccination Status

The ETS requires that employers determine and maintain the vaccination status of their employees. A city should thus include in its vaccination policy the procedures for employees to notify the employer of their status along with which documentation to provide. A city should create and maintain a roster of employees and their vaccination statuses for the duration of the ETS.

C. Research Testing

Whether a city plans to offer the option of weekly testing to unvaccinated workers or only use testing as a religious or disability accommodation, it should review the logistics of testing before determining a compliance approach. Such logistics include considering testing locations near the workplace, onsite testing as a potentially more convenient option, which tests (PCR vs. rapid test) are acceptable, and on which days of the week an employee will be required to show proof of a negative test result.

 D. Consider PTO Requirements

The ETS requires employers to provide employees with up to four hours of paid time off to receive the vaccine during normal work hours. This includes time spent scheduling the vaccine appointment, completing paperwork, receiving the vaccine, and traveling to and from the vaccination site.

E. Address Remote-Worker Requirements

The ETS does not cover employees working from home for the duration of the standard. If a city has remote workers who will never come into the office, it may use remote work as an option for unvaccinated workers. A city can also choose to enforce a vaccination requirement for remote workers, even though it is not required by the ETS.

 F. Determine a Compliance Approach and Create a Written Policy

A clearly written policy should detail the requirements the city has decided upon and the consequences for noncompliance.

Procedural requirements might include:

  • Required documentation, both for proof of vaccination and for weekly testing.
  • A process for employees to submit required documentation and procedures for storage and retention of the information.
  • Time frames for current and new hires to comply.
  • A system for religious and disability accommodation requests.
  • The steps to be taken if an employee fails to comply, up to and including termination.

Flaherty & Hood, P.A. has developed draft policies, which are available at COVID-19 Proof of Vaccination Policy and COVID-19 Proof of Vaccination, Testing, and Face Covering Policy.

G. Develop Employee Communications

The ETS requires employers to provide employees with information about the ETS, employee rights and protections, and the benefits of vaccination. A city should send its employees a memorandum that includes the following:

  • Information about the requirements of the ETS as well as the workplace policies and procedures established to implement the ETS.
  • Information about protections against retaliation and discrimination.
  • Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

These items are included in Flaherty & Hood, P.A.’s Memo to Employees: OSHA Emergency Temporary Standard on COVID-19 Vaccination and Testing.

H. Establish Reporting and Record-Keeping Procedures

The ETS requires that employers establish procedures for employees to promptly report a positive COVID-19 test or positive COVID-19 diagnosis to the employer. Upon such notice, employees must be immediately removed from the workplace until return-to-work criteria from the CDC are met.

A roster of and records pertaining to employee vaccination status must be maintained by employers as confidential medical records and must be retained for the period of time the ETS is in effect.

Source: How to Comply with OSHA’s COVID-19 Vaccination Emergency Temporary Standard, SHRM (Dec. 22, 2021)

IV. When should a city meet and negotiate with unions on mandatory vaccine/testing policies?

Generally, a city cannot unilaterally implement all provisions of a mandatory vaccine policy with unionized employees. Instead, a city must bargain with a union to agreement or impasse on certain provisions that are discretionary and not expressly required by the law before implementing such provisions of the policy, although a union may waive its right to bargain. For example, a union may have waived its right to bargain through a collective bargaining agreement provision stating that the employer may unilaterally impose reasonable workplace safety and health rules, though sometimes with prior notice to the union and an opportunity to comment. In these situations, the city will likely be able to implement a mandatory vaccine policy in its entirety unilaterally as such a likely would constitute a safety and health policy. We recommend that cities copy each union on employee correspondence attaching the policy before it takes effect to provide the union an opportunity to request bargaining on any provision that is bargainable.

V. Is a city responsible for employee costs associated with mandatory vaccination and/or testing?

While the Families First Coronavirus Response Act, as amended by the Coronavirus Aid, Relief, and Economic Security Act, provides for free COVID-19 testing of both insured and uninsured individuals when determined medically necessary by a health care professional, the law does not currently require free testing for general employment purposes. Therefore, understanding the cost implications of testing before implementing a policy is advised.

The ETS does not require the employer to cover the cost of testing; however, Minnesota Department of Labor and Industry (DOLI) has alluded to a position that employers should pay for employee testing, including the time spent completing the testing and travel time to and from a testing site. Though no formal DOLI rule has come out that employers must pay for mandatory testing, a city should be cognizant that this is an issue that may come up, especially with bargaining units.

Federal OSHA has extensive answers to FAQs on the ETS at osha.gov/coronavirus/ets2/faqs.

Questions?

If you need any assistance on the foregoing matters or any other labor employment advice, please contact Flaherty & Hood labor and employment attorneys Brandon M. Fitzsimmons (bmfitzsimmons@flaherty-hood.com) or Christina C. Petsoulis (ccpetsoulis@flaherty-hood.com).