On Nov. 4, the Department of Labor released the Occupational Safety and Health Administration Emergency Temporary Standard regarding vaccines/testing for employers with 100 or more employees, and it was published in the Federal Register Nov. 5. This comes after President Biden directed the agency Sept. 9 to issue the ETS as part of a broader program to combat the COVID-19 pandemic.
NRCA has many concerns with the ETS; however, the exemption it contains for employees who perform work “exclusively outdoors” will substantially mitigate the effects on the roofing industry. NRCA recently spearheaded an effort with the Construction Industry Safety Coalition to send a letter to OSHA noting the low-risk nature of construction industry work warranted exclusion or maximum flexibility from the requirements of the ETS, and NRCA appreciates the agency’s recognition of this fact.
View a copy of the ETS and additional information, including a summary, fact sheets and FAQs, on OSHA’s website.
Effective dates. The ETS is effective upon publication in the Federal Register. The deadline for covered employers to ensure their employees are either fully vaccinated or can produce a negative COVID-19 test weekly is Jan. 4, 2022 (extended to Feb. 9). All other requirements of the ETS take effect Jan. 10. The ETS will remain in effect for six months, at which time the agency will replace it with a permanent rule that could be substantially modified.
Covered employers. The ETS covers all employers with 100 or more employees, except in some cases for employers subject to a previously announced vaccine requirement applicable to federal contractors and subcontractors and in certain circumstances in the health care industry. Please note, the date for compliance for the federal contractors vaccine requirement has been moved from Dec. 8 to Jan. 4 to be consistent with the original ETS requirements.
The 100-employee threshold is determined on a per company basis, not per location. Employers are covered if, at any time during the period the ETS is in effect, they have at least 100 employees (even if at times they drop below 100 employees). Part-time employees are counted equally as full-time employees, but independent contractors are not. Seasonal or temporary workers count if they are employed at any time while the ETS is in effect.
Covered employers who already have implemented their own mandatory COVID-19 vaccination policy may already be in compliance with the ETS. In such cases, OSHA requires the employer be able to show evidence of compliance with the ETS when asked, including requirements for reporting and recordkeeping.
Covered employees. The ETS applies to all employees of covered employers with the following exceptions:
- Employees who do not report to a workplace where other individuals are present
- Employees who work remotely from home
- Employees who perform work exclusively outdoors
With respect to the exemption for employees who work “exclusively outdoors,” Question 2B under the FAQs from OSHA’s ETS website includes the following explanation:
“In order to qualify as work performed exclusively outdoors, the following criteria must be met:
- The employee must work outdoors on all days (i.e., an employee who works indoors on some days and outdoors on other days would not be exempt from the requirements of this ETS).
- The employee must not routinely occupy vehicles with other employees as part of work duties (i.e., do not drive to worksites together in a company vehicle).
- The employee works outdoors for the duration of every workday except for de minimis use of indoor spaces where other individuals may be present—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 employee’s work must truly occur “outdoors,” which does not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite.”
Based on this explanation, roofing industry employees who do not “routinely” share vehicles and work exclusively outdoors except for de minimis use of indoor spaces would not be covered by the ETS. However, employees who routinely share vehicles and work indoors for any substantial amount of time would certainly be covered. OSHA indicates it will look at the cumulative time an employee spends indoors daily to determine which employees are exempt by working “exclusively outdoors.”
Additionally, employees may seek exemptions for medical conditions or sincerely held religious beliefs similar to the vaccine mandate for federal contractors.
Program requirements. Covered employers must develop a program by Dec. 5 (extended to Jan. 10) to verify the vaccination status of all employees and maintain records of status and test results.
All covered employers must:
- Ensure their employees have received the necessary shots to be fully vaccinated—either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson—by Feb. 9
- Ensure any employees who have not received the necessary shots begin producing a verified negative test to their employers at least weekly
- Remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider
- Must notify OSHA within eight hours of a work-related COVID-19 fatality case and within 24 hours of a work-related case that involves hospitalization
- Ensure unvaccinated employees wear a face mask while in the workplace
- Provide employees with information (in a language they understand) about the ETS requirements and the employer’s policy to implement
The ETS lays out the wide variety of tests that comply with the standard. It does not require employers to provide or pay for tests; however, employers may be required to pay for testing because of other laws or collective bargaining agreements.
Paid time off. All covered employers are required to:
- Provide paid time off for employees to get vaccinated—up to four hours for each vaccine dose (this must be in addition to existing paid sick time)
- Provide “reasonable” sick leave if needed to recover from side effects from the vaccine that keep them from working; OSHA suggests providing up to two days (this can be from existing paid sick time)
Federal vs. state jurisdiction. The ETS applies to all states with federal OSHA jurisdiction and indicates it preempts any inconsistent state or local laws. States with OSHA-approved state plans may establish their own plan that is “at least as effective” as the ETS and must notify OSHA within 15 days and publish the plan within 30 days if they choose to do so. Numerous legal challenges are expected to be filed with the courts, and it is expected an expedited legal review specially designed for ETSs will take place.
On Nov. 6, the Fifth Circuit Court of Appeals issued a temporary stay of the ETS while the court further considers lawsuits filed to challenge its constitutionality. The court gave the Biden administration a deadline of 5 p.m. Monday, Nov. 8, to respond to the temporary stay. More lawsuits are expected to be filed against the ETS, but the outcome of these challenges is uncertain.
NRCA will hold a webinar providing highlights of the rule Nov. 18 at 2 p.m. CST. In the meantime, if you have any questions, OSHA has a robust FAQ section and fact sheets on its website, or you can contact Duane Musser, NRCA’s vice president of government relations, at firstname.lastname@example.org or Tom Shanahan, vice president of enterprise risk management and executive education, at email@example.com. NRCA will continue to update its website resources as developments occur.