Employers should count employees across all worksites (including in different states) to determine if they meet the 100-employee threshold. If the employer has 100 or more employees on November 5, 2021, the ETS applies to that employer, even if the employer subsequently falls below the 100-employee threshold. Additionally, if an employer has fewer than 100 employees on November 5, 2021, but subsequently hits the 100-employee threshold for coverage, the employer must then come into compliance with ETS requirements, and remain so for the entire time the standard is in effect, regardless of fluctuations in the size of the workforce. The initial duration of the ETS is 6 months, or until May 5, 2022. Even though the following employees count towards the 100-employee threshold, the ETS requirements will not apply to employees:
• working from home (including fully remote employees and employees working remotely and not working in-office on at least a weekly basis);
• who do not report to a workplace where others are present; or
• who work exclusively outdoors.
The ETS also does not apply to workplaces subject to the guidance issued by the Safer Federal Workforce Task Force, including private companies that contract with federal agencies. This ETS also does not apply to those health care settings covered by the previously issued ETS, as that standard remains in effect. Notably, however, health care entities covered by the new CMS interim rule will be required to comply with the ETS applicable to their workplace settings, as CMS worked closely with OSHA to ensure these regulations were complimentary and not overly duplicative. Finally, the ETS does not eliminate obligations under collective bargaining agreements that provide health and safety protections that are at least as effective as the ETS.
Vaccination Policies Required
All covered employers must establish, implement, and enforce a written mandatory vaccination policy, if they have not already done so, by December 5, 2021, or ensure that existing policies comply with the ETS. In the alternative, an employer may establish, implement and enforce a written policy that allows employees to choose to either (i) be fully vaccinated or (ii) provide proof of regular testing and wear a face covering at work. Written vaccination policies must include:
• requirements for COVID-19 vaccination;
• applicable exclusions from the written policy (e.g., medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs);
• information on determining an employee’s vaccination status and how this information will be collected;
• paid time off (of up to 4 hours) for vaccination and reasonable time to recover from adverse effects of the vaccination;
• notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace;
• information to be provided to employees (e.g., how the employer is making that information available to employees); and
• disciplinary action for employees who do not abide by the policy (up to and including termination of employment).
In addition to addressing the above, employers should include all relevant information regarding the policy’s effective date, who the policy applies to, deadlines (e.g., for submitting vaccination information, for getting vaccinated), and procedures for compliance and enforcement, all of which are necessary components of an effective plan. There is no requirement to submit the policy to OSHA. However, OSHA is authorized to request an employer’s written plan for examination and copying. If an employer receives such a request, regulations require that the plan be provided within four hours of a request. Employers must allow employees to request a reasonable accommodation from the vaccination requirements for employees: (1) for whom a vaccine is medically contraindicated; (2) for whom medical necessity requires a delay in vaccination; or [continued]