After nearly two months of waiting, on November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) published an emergency temporary standard (“ETS”) on COVID-19 vaccination and testing. As described in greater detail below, the ETS requires most employers with 100 or more employees to adopt a policy either requiring employees to be vaccinated against COVID-19 or to submit to weekly COVID-19 testing.
While the vaccination requirement has understandably garnered significant early attention, the ETS imposes many other requirements on covered employers, including requirements to provide information regarding the ETS and vaccination to employees, to gather documentation of vaccination status from employees, to provide paid leave for vaccination and recovery from any side effects and much more. Significantly, most of these requirements go into effect on December 5, 2021, giving employers just a few weeks to adopt and implement policies.
In addition to the ETS, OSHA also published a fact sheet, a summary, FAQs and sample policies, so there is a lot of information for employers to digest in a short amount of time. Below we’ve summarized some of the key questions employers are asking regarding the ETS and how it impacts their businesses. We’ve also addressed a recent court case placing the ETS on a temporary hold, along with advice on how employers should respond.
What is an Emergency Temporary Standard or ETS? Normally, when OSHA adopts a new workplace safety standard, it must first comply with a lengthy notice and comment process before the standard takes effect. OSHA can also act on an emergency basis when it determines that employees are exposed to “grave danger” from exposure to substances or agents determined to be harmful and that emergency action is necessary to protect employees from that danger. In enacting the ETS, OSHA has expressly relied on this emergency process. By design, the ETS is temporary in nature and must be replaced by a permanent OSHA standard (which must follow the formal rulemaking process) within six months.
Basic Requirements of the ETS
- What are the basic requirements of the ETS for covered employers? Covered employers must:
- Develop, implement and enforce a written mandatory COVID-19 vaccination policy;
- Determine and keep a record of the vaccination status of each employee;
- Provide employees with reasonable time, including up to four hours of paid time, to receive each primary vaccination dose;
- Provide employees with reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose;
- Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly;
- 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 who tests positive for COVID-19 or is diagnosed with COVID-19 by a medical provider, regardless of the employee’s vaccination status, and keep the employee out of the workplace until return-to-work criteria are met.
- Require any employee who is not fully vaccinated to wear a face covering when indoors or in a vehicle for work purposes with another person;
- Provide each employee with certain information, written in a way that the employee will understand, about the ETS, the employer’s policies and procedures, vaccine efficacy and safety (by providing the CDC document, “Key Things to Know About COVID-19 Vaccines”), employee protections against retaliation and discrimination and the criminal penalties for false statements or fraudulent documentation;
- Report to OSHA all work-related COVID-19 fatalities within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours; and
- Make certain records available to an employee or an employee representative.
Timing Of The ETS
- What is required in 30 days? By December 5, 2021, employers are expected to comply with most requirements of the ETS, with the one exception of having to require testing for employees who have not completed their entire primary vaccination dose(s).
- What is required by January 4, 2022? All of the requirements already in place by the 30-day deadline, plus the requirement that employers ensure each employee who is not fully vaccinated is tested for COVID-19 on a weekly basis (if in the workplace), or within 7 days before returning to work (if away from the workplace for a week or longer).
- How long does the ETS last? Usually, federal agencies like OSHA must follow a lengthy rulemaking process in order to issue a new regulation (including giving notice to the public and inviting comments to any proposed regulation). The ETS was issued on an emergency basis. As a result, it can only remain in place for a period of six months. After that time, if OSHA wants to continue the requirements underlying the ETS, OSHA must adopt the requirements of the ETA in the form of a permanent OSHA standard. OSHA has made clear that it views the ETS as a proposed rule, signaling that it intends to seek public comment and ultimately convert the ETS into a permanent rule.
- Which employers are “covered employers” under the ETS? The ETS covers employers that have 100 or more employees firm- or company-wide at any time the ETS is in effect.
- Are part-time, temporary and seasonal employees counted? Part-time, temporary and seasonal employees are included in the number of total employees to the extent employed during the term of the ETS.
- Are independent contractors (1099s) counted? Independent contractors are not included in the number of total employees.
- Are remote employees counted? If an employer has 150 employees, and 100 work from home full-time and 50 work in the office at least part-time, the employer would be covered because it has more than 100 employees. However (as discussed below), the requirements of the ETS would not apply to those working exclusively from home.
- How are employees counted for employers with multiple locations? Where the employer is a single corporate entity, employees should be counted at the corporate level, not by location. Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted. For example, if a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work at them.
- How are employees counted in franchises and other joint employment structures? In a traditional franchisor-franchisee relationship (where each franchise location is independently owned and operated), the franchisor and franchisee would be treated separately. This means the franchisor would only count its “corporate” employees, and each franchisee would count only its employees. For example, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by the ETS but the individual franchises would not be covered.
In other situations, “two or more related entities may be regarded as a single employer if they handle safety matters as one company,” in which case the employees of all of the related entities would be counted together. OSHA has not provided additional information on how this provision should be interpreted; most likely, it will be a fact-specific inquiry based on how connected the entities are in this regard. For example, if safety policies (including COVID-19 policies) are shared across entities, and/or if safety officers are shared, the entities may be subject to being counted together. Similarly, if there is a history of handling OSHA matters at the parent company level (rather than at the level of individual subsidiary companies), this could mean the entities would be treated as one employer.
- How are employees counted at multi-employer work sites? At a multi-employer worksite (such as a construction site), each company (e.g., the general contractor and each subcontractor) counts only its own employees. Note, however, that each employer must count all of its employees regardless of where they report for work. For example, if an employer has a total of 101 employees spread out over multiple job sites, the employer is covered regardless of how many employees are present at any one job site.
- For employers whose workforce fluctuates above and below the 100-employee threshold, how is coverage determined? Initially, this determination should be made based on the number of employees as of the effective date of the ETS (November 5, 2021). If the employer has 100 or more employees as of the effective date, the employer will be covered for the entire duration of the ETS, even if its employee numbers drop below 100. For example, if an employer has 103 employees on the effective date, but then loses four within the next month, that employer would continue to be covered by the ETS.
If an employer has fewer than 100 employees on the effective date, the ETS would not apply to that employer as of the effective date. However, if that same employer then hires more workers and hits the 100-employee threshold, the employer would then be required to come into compliance with the ETS. Once an employer has come within the scope of the ETS, the ETS will continue to apply for the remainder of the time it is in effect, even if the employer’s workforce dips below 100.
- How are employees of staffing agencies counted? When employees of a staffing agency are placed at a host employer’s work site, only the staffing agency counts these employees. For example, if an employer has 80 permanent employees and 30 temporary employees from a staffing agency, the employer would not be covered (and the staffing agency may or may not be, depending on its total headcount across work locations).
- Of employers that have at least 100 employees, which are exempted from coverage? Two categories of employers are exempted from coverage under the ETS:
- Workplaces covered under the Federal Contractor Vaccine Mandate (the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors); and
- Settings where at least one employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (29 CFR 1910.502). Certain Medicare and Medicaid rules may also apply.
- If an employer is covered by the ETS, are all of its employees subject to the requirements of the ETS? No. The following employees are not subject to the requirements of the ETS:
- Employees who do not report to a workplace where other individuals (such as coworkers or customers) are present;
- Employees while working from home; and
- Employees who work exclusively outdoors.
Note, however, that these employees are still counted for purposes of the 100-employee threshold.
- What qualifies as work performed exclusively outdoors? To qualify, all of the following criteria must be met:
- The employee works outdoors every day (i.e., an employee who works indoors on some days and outdoors on other days would not be exempt).
- The employee does not ride in vehicles with other employees as part of work duties.
- The employee works outdoors for the whole workday except for de minimis use of indoor spaces – such as a multi-stall bathroom or an administrative office – as long as the time spent indoors is brief or occurs exclusively in the employee’s home (e.g., a lunch break at home).
- The work must truly occur “outdoors,” which does not include buildings under construction where there are structures (such as walls and ceilings) that would impede the natural flow of fresh air.
- What about employees who work from home part of the time? Employees who work remotely part of the time will still need to follow the requirements of the ETS based on when they are at the workplace. Specifically, OSHA has said unvaccinated employees who enter the workplace or interact with others as part of their job must be tested for COVID-19 within seven days prior to returning and must provide documentation upon returning.
Written Mandatory Vaccination Policy
- What information needs to be included in a covered employer’s written mandatory vaccination policy? Under the ETS, a covered employer’s policy should address all of the applicable requirements in the ETS, including:
- The requirements for COVID-19 vaccinations;
- Applicable exclusions from the written policy;
- Information on determining an employee’s vaccination status and how this information will be collected;
- Paid time and sick leave for vaccination purposes;
- Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace;
- A description of the information to be provided to employees and how the employer is making that information available to employees;
- Disciplinary action for employees who do not abide by the policy; and
- Relevant information regarding the policy’s effective date, who the policy applies to, deadlines and procedures for compliance and enforcement.
A sample policy developed by OSHA is available at https://www.osha.gov/sites/default/files/covid-19-ets2-sample-mandatory-vaccination-policy.docx
- May a covered employer’s mandatory vaccination policy require vaccination for some employees but permit other employees the choice of vaccination or testing? OSHA recognizes there may be employers who develop and implement mandatory vaccination policies that apply to only a portion of their workforce. For example, a policy could make vaccines mandatory for employees who work closely with customers, but allow testing for employees who have no customer contact. However, employers who adopt such a partial mandatory vaccination policy must be sure that the policy does not discriminate or have a disparate impact on a class of employees protected by applicable non-discrimination laws.
- If a covered employer adopts a mandatory vaccine program without the testing option, are there any exemptions that can be claimed by employees? The law recognizes two possible legal exemptions, accommodation under the Americans with Disabilities Act (“ADA”) and a religious accommodation under Title VII of the Civil Rights Act of 1964.
- When does an employee qualify for an ADA accommodation in this context? An employee may have a medical condition that is triggered by ingredients in the vaccine. Given the low threshold for establishing a disability under the ADA, such a condition would require that the employer engage in the interactive process to discuss reasonable accommodations with the employee. This accommodation could be arranging for the employee to take an alternate vaccine without the triggering ingredient in it or providing the employee an exemption from the vaccination requirement, while requiring him or her to get tested weekly and wear a mask at work or work from home. As with any ADA accommodation request, an employer does not have to provide an accommodation if doing so would cause an undue hardship. However, establishing an undue hardship under the ADA can be difficult and requires a case by case determination.
- When does an employee qualify for a religious accommodation under Title VII in this context? Under Title VII, an employee must present a “sincerely-held religious belief” in order to trigger the requirement that the employer provide an accommodation. Personal beliefs (i.e. veganism) or ethical objections (anti-vaccination philosophies) are generally insufficient to meet this standard.
If an employee establishes a sincerely‑held religious belief, the employer must consider potential accommodations to the vaccine requirement, such as working from home, or regular testing and mask wearing. The employer can deny an accommodation if it establishes that an accommodation would create an undue hardship. Note that establishing undue hardship in this context is generally a lower burden for employers than in the ADA context. An employer can establish an undue hardship in response to a request for a religious accommodation by showing the potential harm to the employer, its employees and third parties in the workplace (including customers or clients).
- Are there any exceptions in the ETS for unvaccinated employees who claim to have natural immunity because they previously had a COVID-19 infection? No, the ETS does not offer any exemptions to vaccination requirements based on “natural immunity” or the presence of antibodies from a previous infection.
- Must an employer allow employees to opt out of vaccination in favor of regular testing? Generally, no. Except for religious and disability accommodations, all covered employees must be (or become) vaccinated. Covered employers have a choice, however. The ETS allows employers to either adopt a mandatory COVID-19 vaccination policy or to establish a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace. Importantly, this choice is the employer’s to make, not the choice of any employee.
- If unvaccinated employees are working remotely, will they still need to submit to weekly COVID-19 testing under the ETS? The requirements of the ETS, including mandatory vaccination and/or weekly testing, do not apply to the employees of covered employers who do not report to a workplace where other individuals such as coworkers or customers are present or while such employees are working from home.
- If an employee has a disability or a sincerely held religious belief that prevents him or her from being vaccinated, does the ETS still require that employee to be tested weekly? The ETS requires weekly COVID-19 testing of all unvaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements due to a disability or a sincerely‑held religious belief. However, if testing for COVID-19 also conflicts with a worker’s sincerely-held religious belief, the worker may be entitled to a reasonable accommodation under Title VII.
- If a covered employer adopts a COVID-19 vaccination policy that does not permit weekly testing and mask-wearing instead of vaccination, does the ETS require that employer to continue to employ an employee who refuses the vaccine, but does not cite a valid medical or religious reason for the refusal? Under the Occupational Safety and Health Act (the “OSH Act”), an employer may not discharge or retaliate against an employee because the employee exercised any right under the OSH Act. However, the OSH Act does not prevent employers from taking disciplinary action against employees for engaging in activities that are not protected by the OSH Act. Therefore, an employee’s refusal to comply with the employer’s policy on vaccination would generally not be protected under the OSH Act.
Time Off, Paid Leave And Testing Costs
- May covered employers require employees to use available PTO or sick leave to get vaccinated? Employers are required to provide reasonable time to each employee during work hours for each of their primary vaccination dose(s). Employees who are not exempt, salaried employees must receive up to four hours of paid time, at the employee’s regular rate of pay, for the purposes of vaccination. The four hours of paid time cannot be offset by any other paid leave that the employee has accrued, such as PTO, sick leave or vacation time.
- Does an employer have to provide reasonable time and pay for an employee’s time if the employee gets vaccinated outside of work hours, such as on a Saturday? A covered employer is not required to grant paid time to any employee for the time spent receiving the vaccine during non-working hours. However, the employee will still be eligible to receive reasonable time and paid sick leave for any scheduled work time missed to recover from side effects that he or she experiences due to the vaccine.
- Who is responsible for paying for the costs of the COVID-19 tests? The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations or collective bargaining agreements. The ETS does not prohibit employers from electing to pay for employee testing. And, if testing is part of a reasonable accommodation for a medical reason under the ADA or due to a sincerely‑held religious belief under Title VII, the employer will likely be responsible for paying for the testing unless it can show an undue hardship.
Removal Of COVID-19 Positive Employees From The Workplace
- Do vaccinated employees need to be removed from the workplace if they test positive for COVID-19? Regardless of COVID-19 vaccination status, the employer must immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider.
- Does the ETS require that an employer remove an unvaccinated employee from the workplace if he or she has been in close contact with a COVID-19 positive person at the workplace? The ETS does not require the removal of an unvaccinated employee if he or she has been exposed to a person who is COVID-19 positive. The ETS only requires that employers remove employees from the workplace if they have tested positive for or been diagnosed with COVID‑19. However, OSHA encourages employers to implement medical removal policies that are stronger and more protective if and as they are able to do so.
- What are the return-to-work criteria under the ETS for an employee removed from the workplace due to a positive COVID-19 diagnosis? The employer must not permit the employee to return to the workplace until the employee:
- Receives a negative result on a COVID-19 nucleic acid amplification test (“NAAT”) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
- Meets the return to work criteria recommended by the CDC; or
- Receives a release for return to work from a licensed healthcare provider.
- What criteria does the CDC Guidance provide for an employee’s return to work after a positive COVID-19 diagnosis? It depends on the circumstances.
- For employees with symptomatic COVID-19, infection, isolation and precautions can be discontinued 10 days after symptom onset and after resolution of fever for at least 24 hours and improvement of other symptoms.
- For people who are severely ill (i.e., those requiring hospitalization, intensive care, or ventilation support) or severely immunocompromised, extending the duration of isolation and precautions up to 20 days after symptom onset and after resolution of fever and improvement of other symptoms may be warranted.
- For people who are infected but asymptomatic (never develop symptoms), isolation and precautions can be discontinued 10 days after the first positive test.
- Is a covered employer required to provide an employee with paid time off if they are removed from the workplace due to a COVID-19 infection? The ETS does not require employers to provide paid time off to any employee for removal from the workplace as a result of a positive COVID-19 test or diagnosis of COVID-19; however, employers should allow their employees to make use of any accrued leave in accordance with the employer’s policies and practices on use of leave. In addition, paid time off may be required by other laws, regulations or collective bargaining agreements.
Masks In The Workplace
- If an employer adopts a policy allowing employees to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace instead of vaccination, do all employees need to wear a face covering? The ETS only requires employees who are not fully vaccinated to wear a face covering when indoors and when occupying a vehicle with another person for work purposes. Other legal requirements, such as local emergency orders, may require all employees to wear face coverings. Employers are not permitted to prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering or facemask unless the employer can demonstrate that doing so would create a hazard.
- Are there any exceptions under the ETS to the face covering requirements for workers who are not fully vaccinated? The exceptions cited by the ETS are:
- When an employee is alone in a room with floor to ceiling walls and a closed door;
- For a limited time while the employee is eating or drinking at the workplace;
- For identification purposes in compliance with safety and security requirements;
- When an employee is wearing a respirator; and
- Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance with the ETS.
Employer Recordkeeping Under The ETS
- What information must employers obtain regarding vaccination status? Employers are required to determine the vaccination status of each employee by obtaining acceptable proof of vaccination, maintain records regarding each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. Additionally, employers must ensure that they are keeping record of weekly tests for non-vaccinated employees who work in the workplace and tests for employees returning to work and who have been away from the workplace for a week or longer. Finally, employers are required to obtain record of positive COVID-19 tests and diagnoses from employees, regardless of vaccination status.
- Are covered employers responsible for collecting or maintaining records of eligible employees’ booster shots or additional doses of the vaccination? Although covered employers are required to determine the vaccination status of each employee, including whether the employee is fully vaccinated, the employer is not required to obtain vaccination-related information beyond what is necessary to show that the employee is “fully vaccinated” as defined by the ETS. Booster shots and additional doses are currently not included in the definition of “fully vaccinated” under the ETS.
- What information must be provided upon employee request? Upon request by either an employee or anyone having their written authorized consent, and by the end of the next business day after a request is received, an employer must provide record of that employee’s vaccination documentation and/or any COVID-19 test results, as well as the aggregate number of fully vaccinated employees at the workplace along with the total number of employees at the workplace.
Penalties For Violation Of The ETS
- What penalties are there for non-compliance with the ETS? OSHA may fine a covered employer that does not comply with the ETS up to $13,653 for each violation of the standard. Willful or repeated violations can lead to fines of up to $136,532.
- What if a state law prohibits mandating vaccination? With one major exception, the ETS preempts states and other non-federal governmental agencies from enforcing their own occupational safety and health requirements related to issues discussed in the ETS (i.e. vaccination, wearing face coverings and testing for COVID-19). The only exception is if the state’s rule comes from a federally‑approved OSHA State Plan.
- What is an OSHA State Plan? States that wish to assume responsibility for developing and enforcing occupational safety and health standards can submit their own plan to OSHA for approval. To receive approval from OSHA, the State Plan must adopt and enforce occupational safety and health standards that are at least as effective as federal OSHA’s requirements.
- What states and territories have their own State Plans? The following states and territories have State Plans: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington and Wyoming.
- Are states with States Plans automatically subject to the ETS? Within 15 days of the effective date of the ETS, a State Plan must inform OSHA of its decision whether to adopt the ETS, not to adopt it, or to adopt it with modifications. If the State Plan does not adopt the ETS, it must publish its own rule with 30 days of the effective date of the ETS.
- What happens if a State Plan does not adopt the ETS or an emergency rule that is at least as effective within this timeframe? Under such circumstances, OSHA could determine that the State Plan is not at least as effective as Federal OSHA. If it does so, OSHA could initiate actions to ensure adequate protections for workers within the state, including reconsideration and possible revocation of the State Plan’s authority to have an occupational health and safety plan separate from OSHA.
- Has OSHA ever done so? It has threatened to do so. This summer, the State Plans of Arizona, South Carolina and Utah failed to adopt a rule providing for the same level of safety as OSHA’s healthcare worker ETS. In response, OSHA proposed revoking the State Plan status for each of these states in regulations published in the Federal Register.
- What will North Carolina’s State Plan do in response to the ETS? North Carolina has not made a decision as of the publication of this article. Josh Dobson, the Commissioner of the North Carolina Department of Labor (“NCDOL”), issued a statement on its website on November 4, 2021 regarding the ETS. In the statement, Commissioner Dobson supported vaccination as “the best way to get our country out of this pandemic” and affirmed that employers “have a responsibility to provide a safe and healthy workplace for employees.” At the same time, Commissioner Dobson stated that the “the federal government’s COVID-19 vaccine mandate [i.e., the ETS] is the wrong approach, as it will further strain existing resources within the OSH Division and exacerbate the state’s workforce crisis.” As a result, Commissioner Dobson stated that the NCDOL was “reviewing the text of the rule and its potential impact on our state’s employers” and he was “considering all possible avenues and [would] pursue the option that best serves the collective interests of North Carolina employers and workers.”
On November 10, 2021, Commissioner Dobson participated in a webinar with the North Carolina Chamber of Commerce. During his comments, Commissioner Dobson noted that the NCDOL would not take action until various court challenges had concluded.
- What if my company has employees in multiple states (some covered by the ETS and some covered by the rules of a State Plan)? The company would need to apply the State Plan’s rule under the timeframes applicable under such rule to employees in that state. Otherwise, the ETS would apply.
- Will the ETS be challenged in court? Certain states and employers have challenged the ETS in a number of courts, including the Fifth, Sixth, Seventh, Eighth and Eleventh Circuit Courts of Appeal. The Fifth Circuit has temporarily stayed enforcement of the ETS while the courts determine if the ETS meets certain legal requirements.
- What should employers do while litigation regarding the ETS proceeds? Because of the short timeframe for compliance under the ETS, the best practice for employers is to proceed with plans to comply with the ETS unless and until a final ruling putting the ETS permanently on hold is announced.
Federal Contractor Rule
- What rule applies to Federal Contractors and Subcontractors? The ETS does not apply to workplaces covered by the Safer Federal Workforce Task Force COVID–19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (“Contractor Guidance”). However, federal contractors and subcontractors who have more than 100 employees would be required to meet the requirements of the ETS in any workplaces that are not covered by the Contractor Guidance (for example, where the employer contracts with an entity other than the federal government).
- What workplaces are covered by the Contractor Guidance? The Contractor Guidance applies to locations controlled by a covered contractor where there are employees present who work on or in connection with a covered contract, as well as federal workplaces. An employee is considered to work on or in connection with a covered contract where the employee performs duties necessary to performing the contract, even where the employee is not directly engaged in the work required by the contract (e.g., human resources, billing, legal). Note that if an employee works at a covered contractor location, the employee is subject to the Contractor Guidance, even if the employee does not work on or in connection with a covered contract.
- What is different for workplaces covered by the Contractor Guidance? Among other requirements, the Contractor Guidance differs in the following ways:
- The Contractor Guidance applies to covered contractors regardless of size and number of employees.
- The Contractor Guidance requires COVID-19 vaccination of covered contractor employees (except where the employee is legally entitled to an accommodation), and does not permit the employer to allow regular COVID-19 testing as an alternative to vaccination.
- Remote workers who perform work on a covered contract must comply with the vaccination requirement, even if they never work at a covered contractor workplace.
- The Contractor Guidance applies to contractor or subcontractor workplace locations that are outdoors (although mask wearing requirements are relaxed in some instances outdoors).
- Covered contractors must designate a person to coordinate COVID-19 workplace safety efforts.
- Covered contractors must ensure all individuals comply with CDC guidance for masking and physical distancing at a covered workplace. Unvaccinated individuals must wear face masks indoors and maintain a distance of at least six feet from others (with certain exceptions). Vaccinated individuals must wear a face mask in indoor settings in areas of high or substantial community transmission, but not in areas of low or moderate community transmission. Vaccinated individuals do not need to physically distance.
- Attestation of vaccination is not an acceptable substitute for documentation of proof of vaccination.
- What is the deadline for vaccination under the Contractor Guidance? The deadline for vaccination set by the Contractor Guidance is December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a covered contract. However, the Administration announced on November 4, 2021 that the deadline for workers to be vaccinated would be the same for the OSHA ETS as for the federal contractor vaccination requirement. Therefore, covered contractor employees will need to have their final vaccination dose by January 4, 2022 and be fully vaccinated no later than January 18, 2022.
- Is the Federal Contractor Rule affected by the Fifth Circuit’s recent temporary stay of the ETS? No – that ruling did not affect the Federal Contractor Rule.
- Where can I learn more about the Contractor Guidance? The Contractor Guidance and detailed FAQs are available at: https://www.saferfederalworkforce.gov/contractors/.
- Are healthcare workers subject to the ETS? Not in all cases. On November 4, 2021, the Centers for Medicare & Medicaid Services (“CMS”) published an Interim Final Rule (the “CMS Rule”) requiring certain healthcare workers to be fully vaccinated by January 4, 2022. This rule is estimated to affect 76,000 healthcare facilities across the country.
- Does the CMS Rule allow for employees to be tested weekly in lieu of vaccination? The CMS Rule requires all subject workers to be vaccinated in the timeframe defined.
- Do employers have to provide any accommodations under the CMS Rule? Employers must still provide reasonable accommodations under the ADA and Title VII (as discussed above in connection with the ETS). Under such circumstances, the employers must impose additional safety precautions minimizing risks to patients.
- Which healthcare facilities are subject to the CMS Rule? The CMS Rule applies to the following Medicare and Medicaid-certified provider and supplier types:
- Ambulatory Surgery Centers (“ASCs”);
- Clinics, Rehabilitation Agencies and Public Health Agencies as providers of outpatient physical therapy and speech-language pathology services;
- Community Mental Health Centers;
- Comprehensive Outpatient Rehabilitation Facilities;
- Critical Access Hospitals;
- End-Stage Renal Disease Facilities;
- Home Health Agencies;
- Home Infusion Therapy Suppliers;
- Intermediate Care Facilities For Individuals With Intellectual Disabilities;
- Long-Term Care Facilities (including Skilled Nursing Facilities and Nursing Facilities, more commonly known as “nursing homes” in many contexts);
- Programs for All-Inclusive Care for the Elderly Organizations (“PACE”);
- Psychiatric Residential Treatment Facilities (“PRTFs”); and
- Rural Health Clinics and Federally Qualified Health Centers.
- What employees at these facilities are subject to the CMS Rule’s vaccination mandate? The CMS Rule applies to all staff providing services for a facility that participates in the Medicare and Medicaid programs. To be clear, the CMS Rule applies under such circumstances even if the employee does not have clinical responsibility or patient contact. The CMS Rule applies to current employees at these facilities, as well as licensed practitioners, students, trainees and volunteers. Furthermore, the CMS Rule applies to individuals who provide care, treatment or other services for the facility and/or its patient under a contractor relationship or other arrangement.
- Does the CMS Rule apply to full-time teleworkers? No, but this requirement will be construed strictly. To qualify as a full‑time teleworker, the employee must provide 100% of his or her services remotely and not have any direct contact with patients or other staff at the facility.
- Does the CMS Rule apply to a physician with admitting privileges in a hospital? Yes, a physician admitting and/or treating patients in-person within a facility subject to the CMS Rule must be vaccinated.
- What are the potential penalties for facilities who do not comply with the CMS Rule? The potential penalties for non-compliance are severe, including:
- Civil monetary penalties;
- Denial of payment and/or reimbursement for claims under Medicare/Medicaid; and,
- Termination of the facility’s ability to participate in the Medicare and Medicaid programs.
CMS has made clear that the remedy for non-compliance among hospitals and certain other acute and continuing care providers would be termination from the Medicare and Medicaid programs, but that CMS would generally only use this remedy after providing the facility an opportunity to make corrections and come into compliance.
- Is the CMS Rule affected by the Fifth Circuit’s recent temporary stay of the ETS? No – that ruling did not affect the CMS Rule.
- Where can I learn more about the CMS Rule? Detailed FAQs are available at: https://www.cms.gov/files/document/cms-omnibus-staff-vax-requirements-2021.pdf.