Episode 46 – Preparing for OSHA’s COVID-19 ETS

Welcome to the TRSA podcast. Providing interviews and insights from the linen, uniform, and facility services industry. Most Americans might not realize it, but they benefit at least once per week from the cleanliness and safety of laundered, reusable linens, uniforms, towels, mats, and other products provided by various businesses and organizations. TRSA represents the companies that supply, launder, and maintain linens and uniforms. And in this podcast, we will bring the thought leaders of the industry to you.

 

Hi. I’m Jason Risley, and thanks for tuning in to the Linen, Uniform, and Facility Services podcast, interviews and insights by TRSA. It’s November 2021, and TRSA recently hosted its 4th Annual Marketing and Sales Summit and 10th Annual Healthcare Conference in Plano, Texas. A topic of discussion at the healthcare conference was the recently released US Occupational Safety and Health Administration’s emergency temporary standard for COVID 19 vaccinations. While the standard is currently tied up in the courts, linen, uniform, and facility services companies should be prepared to comply with the rule moving forward as the temporary hold on the order could be lifted at any time.

 

To get a better understanding of the status of OSHA’s emergency temporary standard, we are joined on the podcast today by Martine Wells, a partner at Brownstein, Hyatt, Farber, Schreck. Wells will explain and clarify the regulation, outline the steps for compliance, and discuss its impact on the linen, uniform, and facility services industry. So we wouldn’t be lawyers if we didn’t give, the disclaimer. As you know, this is an ever evolving landscape, and we are not providing legal advice today. Rather, we’re providing general information regarding this evolving landscape, particularly regarding, COVID 19 vaccinations.

 

Because the law in this area is changing rapidly, this will probably be out of date by this afternoon or tomorrow. So we can’t guarantee that the information will be good again, given how quickly this is all evolving. The ETS has arrived. As you know, on November 4, 2021, the ETS was announced. And today, we’re gonna go over some of the very specific details around how an employer determines whether they’re a covered entity, what counts as 100 employees, what exactly what policies the law requires, what are the testing requirements, what are the paid leave requirements, record keeping, all the things.

 

And in addition, we’ll start with some 30,000 foot sort of background and overview regarding, you know, considering existing laws that may be more more, strict as well as existing laws, that this law attempts to supersede, talking about what practices employers may already have in place and what aspects of those may need to change, and, of course, the legal challenges and whether or not this this rule will become final such that employers have to comply and what employers should be thinking about in the interim while we’re waiting to see whether it becomes final. Presumably, your organizations have been, working on vaccine related issues for a while now, so this should not be new, unlike a year ago when we were having these conversations. But still, even if an employer has a has a pro proactively work towards compliance and has some policies in place, there’s likely some tweaks that will be needed. So we’re gonna go over legal backdrop, the requirements, penalties, some key dates to keep in mind. Most important as we sit here today that those key dates are December 5th and January 4th, unless things change in the courts.

 

I’ll just briefly touch on, the concept of preemption. As I’m sure you’re all aware, there are a number of, state and local laws addressing vaccinations in the workplace, inquiring about vaccinations in the workplace, inquiring about vaccinations in the workplace, masking, etcetera. The intent of OSHA’s new rule, the ETS, is to sort of supersede states’ abilities to have, their own rules on this to the extent their own rules are, less protective of the workplace and to the extent that they are not a federally approved OSHA state. And so what that means is that there are 22 states that have OSHA approved plans. Those states, which are shown in the sort of middle color blue, those states make promulgate their own OSHA plan so long as it is more protective than the one the federal government has promulgated.

 

But the states that are shown in light blue, those states cannot promulgate their own plan. And, again, the federal law is intended to preempt any laws that are less protective. For example, ones that say masks cannot be required in the workplace, etcetera. That’s just an important thing to keep in mind at the outset when an employer is considering, what to do in the different states with the different different plans that have already been in place. So, the other major, sort of legal backdrop item to keep in mind, as I’m sure y’all have seen in the news, is that, on November 5th, I believe the day after the rule was published, we started to see the legal challenges filed.

 

The first one was filed in the 5th Circuit, which, and this is a map of the circuit courts. The 5th Circuit covers Texas, Louisiana, and Mississippi. And, at least as of last night, lawsuits, objecting to the law have been filed in the 6th, 8th, 11th, and DC circuits. Those circuits, as shown in the map, are typically more conservative leaning jurisdictions. And as we sit here right now, what has happened is the 5th Circuit has issued a nationwide stay of the of the rule and ordered expedited briefing.

 

And so what that means is the court has said, we have concerns about this proposed rule or this emergency rule, this emergency standard, and we wanna see briefing on it, and we wanna make a decision as quickly as possible. Now the caveat on that there there’s a couple caveats. Number 1, the rule hasn’t been invalidated. So as we sit right now here right now, although the rule has been stayed, if that stay is lifted and nothing changes, then employers still have their 1st compliance deadline of December 5th. The second caveat is that, because there have been lawsuits filed in so many jurisdictions and there may be more to come, there’s going to be what’s known as the judicial the multi jurisdictional lottery, which is there’s literally a bucket and each jurisdiction each circuit that has a case filed, one circuit will be picked from that bucket, and that is the the circuit court that will decide, this issue.

 

As we sit here right now, we have no idea what is going to happen with these rules. Generally speaking, employ you know, we are advising employers to work towards compliance. This is because the rule may become final on the one hand. And on the other hand, there are a number of state and local requirements that are already in place that, you know, an employer’s move towards these compliance with these rules likely will help the employer get compliant with the other rules to the extent it is not already. Just very briefly, I’ll touch on the legal challenges, that are being presented by opponents of this emergency standard.

 

One of the main challenges is whether the workplace and workers in the workplace are in such grave danger that notice and rulemaking, didn’t have to occur. And what that means is that, normally, if there’s going to be a regulation that applies across the country, there’s a process called notice and rulemaking whereby employers and employee groups can submit comments and that that feedback is taken in and that helps with the final rule. Here, this was promulgated on a very fast time frame with no notice and comment. And so that’s one of the questions under administrative law. And one of the second questions is even if the, it’s found that, there’s such grave danger in the workplace that OSHA was allowed to promulgate this rule under the OSH Act, the question remains, does OSHA actually have the authority to issue this rule?

 

And on that point in 1970, when the OSH Act, delegated this authority to OSHA, you know, the question is, was OSHA given the authority to mandate vaccines across the entire, you know, virtually the entire workforce? So there’s some very tough legal questions ahead, that make it really impossible for any of us to predict. Alright. So now into the nitty gritty. For the ETS requirements from a high level, if, to the extent that your, you know, business or organization has 100 or more employees, by December 5th, that employer is required to provide employees PTO to get vaccinated, and they are required to have unvaccinated workers start to mask in the workplace to the extent they are not already.

 

And then, on January 4th, that’s the next big compliance deadline, employers are required to, fully implement their new policies. And there’s 2 options for the new policies for private employers. One option is they mandate vaccination. The other option is they give workers the choice between be vaccinated or submit to weekly testing and mask in the workplace. Also starting January 4th, unvaccinated workers will be required to start producing a negative test on at least a weekly basis.

 

So a couple other points on coverage. Number 1, franchisee franchisor relationships have, special guidance and that’s in the FAQs. And if that’s relevant for any of you, I’d encourage you to look at that FAQ. Additionally, you know, OSHA noted that joint employment is still a consideration. So even to the extent and I think what that means is that even to the extent, let’s say, you know, you’ve got staffing agency workers on-site.

 

Let’s say you have, a call center as part of your operations, and you had to staff up at a busy time of year with extra call center workers. For purposes of the count, they are not your workers. They are the staffing agencies workers. But for purposes of providing a safe work place, I believe OSHA means, you know, that that responsibility falls jointly between, the staffing agency as well as the location where the employees are assigned. So exclusions.

 

Importantly, what is not covered by this ETS, employers with fewer than 100 employees, federal employees, and federal contractors. So to the extent any of your businesses are federal contractors with a contract that was signed, I believe the date is before November 14th, a federal government contract, then, your business is under the federal contractor rules. The date is November 14th. If you have a federal government contract that predates November 14th, your business is not covered by the federal contractor. Right?

 

But to the extent your business has a contract with the Federal Government that’s signed after November 14th, then your business would be covered, by the Federal standard. Similarly, workers in healthcare settings subject to CMS emergency rules also will not be covered by the current ETS. The health care setting subject to the CMS rule is fairly broad. So I recommend, you know, to the extent your businesses should know by now whether you’re covered by that rule because it went into effect several months ago. Currently, it is set to expire on December 21st.

 

As we sit here right now, this proposed ETS does not cover that one. And if I had to guess, there will be an extension of the healthcare ETS. The other exclusion, and I wanna point out, they’re not excluded for purposes of the count, but they are excluded for purposes of certain aspects of compliance are employees who work remotely, employees who work entirely outdoors, and employees who report to a workplace with no customers and no coworkers. These three sort of types of scenarios may be exempted, from complying with the the rule the further rules that we’re about to go over. And to the extent that, any of these situations are relevant to your workforce, there are, many more detailed nuances in the FAQs.

 

So what does what does the ETS actually require? An app based, it requires, and we mentioned this at the beginning, it requires an employer to either mandate the vaccine for its workforce subject to legally required exemptions, or it requires an employer to promulgate a vaccine and testing policy. And under the vaccine and testing policy, or I I actually think it’s a vaccine or test and mask policy, employee employees have a choice. They either must be fully vaccinated or, to the extent the employees don’t submit proof of full vaccination, those employees need to submit to weekly testing and must mask basically at all times in the workplace. It’s an either or proposition.

 

These are the 2 two options for an employer with a 100 or more employees. And we’re gonna get into further details about what what the employer must do because the directive from OSHA is that the employer must develop, implement, and enforce a policy. In terms of the mandatory vaccination policy or the alternative vaccination and test policy, OSHA has actually provided compliance assistance. Now for a brief message from TRSA. Laundries are certified hygienically cleaned through third party inspection and quarterly testing that quantifies an established threshold of pathogens on textiles to levels that pose no threat of illness.

 

Inspectors also verify employee training, safety standard compliance, and operational efficiencies. Certified laundries must maintain a quality assurance or QA manual that indicates their management, housekeeping, and training practices comply with the hygienically clean standard. Now back to the episode. For employers that have a mandatory vaccination policy, there are exemptions. And, presumably, at this point, your organizations are familiar with these exemptions, but they’re they’re slightly, you know, they’re spelled out in detail in the in this ETS.

 

Number 1 is if the vaccine is medically contraindicated. The second exemption is if there’s a medical necessity requiring a delay in vaccination. And number 3 is, you know, the one you’re probably all familiar with, legally entitled to a reasonable accommodation under federal civil rights law because they have a disability or a sincerely held religious belief practice or observance conflicting with the vaccine. And as Christine mentioned earlier, all of to the extent an employee to the extent an employer promulgates the mandatory vaccine policy, and an employee or applicant comes forward with, you know, one of these requests, then the employer should then be kicking that individual into the usual interactive process. And then there’s different standards that apply depending on whether it’s a medical related request, a disability related request under the ADA, or a religious request.

 

And if you if the employer is providing the choice between vaccination or testing and masking, here are the relevant considerations. So for testing, the employer is required to provide, the employer is required to make the employee test weekly even if the employee only comes to the workplace once a week, and the employer can require more. For most of what we’re talking about today, the employer can go above and beyond just like state and localities can go above and beyond what OSHA has required. To the extent you have someone who’s not in the workplace regularly, then the standard that applies to that individual is that within the 7 days before returning to the workplace, that individual needs to be tested. Importantly, the test does not have to be a PCR test.

 

The test can be a rapid over the counter test. And to the extent an employee is removed from the workplace place due to a positive test or test positives out outside the workplace, OSHA has, detailed that they may return to the workplace if they have a negative PCR, if they are okay to return to work per CDC guidance, or they have health care provider green light to return to the workplace. So just sort of additional layers of guidance in the ETS. Masking. Generally, employees are gonna be required to mask in work vehicles if they’re with someone else.

 

Masking, the face coverings must be double layered and the employer does not need to pay for or provide, the masks. So under the vaccine or test policy, here’s sort of the bottom line on where we’re landing January 4th, if if this rule gets there. To the extent, on January 4th, to the extent an employee is not fully vaccinated, the employer must require them to test weekly and provide proof of that negative test result. One issue that has been coming up even before the ETS, and I’m sure something that your organizations have been grappling with and that all of our clients have been asking us about is, to what extent are employers required to pay for the time it takes employees to get tested and or to pay for the test? So, OSHA has taken the position that employers are not required to pay for testing, the testing time or the test itself.

 

That said, there are a number of exceptions to that that employers would be well behooved to keep in mind. One exception that, you know, I think Christine and I think is pretty uncontroversial as an accommodation to particularly to a medical or disability related condition, then the employer probably is required to pay for the time it takes for the employee to get tested and for the testing itself. The second exception would be that under certain state laws, and I believe California is one of them, employers are gonna be required to pay for testing time and test themselves. 3rd exception would be collective bargaining agreements. On under a CBA, employees may be employers may be required to pay for testing time and or tests.

 

So, really, the high level takeaway on paying for testing time and or paying for the tests is, consult legal counsel to discuss sort of risk tolerance based on the jurisdictions that employers in. One other thing, that stood out from the guidance around the ETS on this point is that, you know, in addition to looking to these other sources, collective bargaining agreement, state and local law, and the Federal Fair Labor Standards Act, and the accommodations considerations is that to the extent an employer has a testing program, the employer can provide the testing on-site during the work hours, and that’s sort of another workaround on this issue. Face coverings. So this will be new for certain workplaces. Employers are going to have to ensure by j by December 4th or 5th, December 5th, that employees who are not fully vaccinated need to wear face coverings in the workplace at all times.

 

The ETS gets much more granular than other guidance has been in the past. They define, an employee can take off their mask when they are alone in a fully enclosed room. So that means to the extent you have an unvaccinated worker in a cubicle or other open air setting, that employee must be masked. The employee may take off the mask to eat or drink, and the employee may take off the mask, when wearing the face covering is not feasible or creates a greater hazard. One of the examples that was provided is, you know, if there’s a circumstance where it’s essential for the job, that someone’s mouth be seen.

 

That’s that’s where we stand on face coverings under the vaccine or test policy. So paid paid time and paid sick leave. This is the next really complex area, particularly for multi jurisdictional employers. From a high level, the ETS requires the following. Number 1, an employee needs to be required, be provided paid leave to obtain vaccination.

 

And, the employee this time is up to 4 hours for each primary dose. So to the extent employee is doing 2 dose series, that would be 8 hours, 1 dose series, 4 hour up to 4 hours of paid time. As we sit here today, boosters are excluded from this guidance. For paid leave to obtain the vaccination, an employee cannot be required to use his or her existing paid leave time. For up to 4 hours of paid leave to get the each primary dose of the vaccine, Employer also must require paid leave time for the employee to recover from vaccination side effects.

 

I believe the regs say reasonable amount of time. I believe that the definition is not in the regs, but in the guidance. And it says, 2 days for each primary dose, and, again, boosters are excluded. On this point, the employer can require the employee to use existing already accrued paid sick time, and arguably a a broader PTO policy where it’s not delineated, but the employer cannot require the employee to go negative on their balance. So if the employee has already used their paid sick time for the year, the employer must, provide the extra time.

 

One other thing that is in the ETS is that OSHA is not going to require paid leave for COVID positives. But on that note, check state and local laws because, obviously, certain jurisdictions, do require that. And finally, there has been a lot of commentary that we’re we expect DOL may provide more guidance on the in the paid leave space. So another requirement under the ETS, irrespective of which policy path an employer chooses, the employer must provide each employee with information in a language and literally literacy level the employee understands, and it includes that retaliation is prohibited as is discriminate discrimination. And it it there’s supposed to be a reminder to employees that if the employees knowingly supply false statements or documentation, not surprisingly, the record keeping requirements are rather onerous, and and may this is an area that probably will be a change for some employers.

 

Number 1, there will be a requirement under either policy that the employer determine the vaccination status of each and every employee. Number 2, status. And of such status. And the roster, importantly, the proof of status must be maintained as an employee medical record, so that’s in a separate file. One other nuance in the ETS around record keeping is that, employees employers are allowed to accept as proof of vaccination and attestation.

 

So, this is a kind of strange wrinkle, but employees, as opposed to providing their vaccine card, if they lost their card, they are allowed to provide a dated attestation, that is signed that says they got vaccinated when they got vaccinated, and an employer is allowed to accept that. That is going to be an interesting added layer to the onion of this dynamic. One sort of bone that was thrown to employers is that to the extent employers have already undertaken this process and already are collecting the status and information, the employer can rely on that prior information. They don’t need to redo their process. Additionally, and I think this speaks to the point about the attestation to the extent the employer does its due diligence in running this process.

 

OSHA is not going to hold the employer accountable for documentation that’s ultimately found fraudulent. So different standard than what we see in, for example, the I9 context. Regarding recordkeeping, as we sit here today, there is no, determination as to boosters. Moving on, reporting requirements. So, you know, reporting requirements have existed throughout the pandemic, for workplace related illnesses, but the ETS underscores, its specific expectations as to COVID 19.

 

Number 1, to the extent there’s a work related fatality deriving from COVID 19, that must be reported within 8 hours of the employer learning it. To the extent there’s a work related inpatient hospitalization, the employer must report that within to OSHA within 24 hours of learning of the hospitalization. Additionally, OSHA, is going to require employers to be able to provide upon request a number of pieces of information, the records that we just spoke of. Number 1, individual vaccine information and test results, and that the time frame on that is next business day after the request. The second area that they’re gonna require an employer to be able to answer on is the aggregate number of fully vaccinated workers by the end of the next business day after a request or to the extent the ex assistant secretary is involved in the request within 4 business hours.

 

And in addition, the employer will need to be able to provide proof of its vaccination policy within 4 hours of a request. So some pretty, onerous reporting requirements. If the ETS becomes effective, you know, in December and then January, OSHA will be able to assess a number of penalties typical to what we see in other workplace agency enforcement actions, including citations, fines of up to $13,000 for each serious violation, and fines of up to $136,000 for each willful violation. Criminal penalties are also possible. And it’s given, you know, given the various requirements associated with this law and particular this rule and particularly the penalties, you know, again, our overarching advice for employers is obviously to watch and wait, but to start preparing for compliance, unless that employer business has the risk tolerance to deal with these types of penalties.

 

Open questions. Smaller employer coverage. OSHA is seeking comments on this point. They haven’t yet, made a rule on it. We don’t have any guidance regarding boosters yet and regarding whether that’s going to factor into the definite fully vaccinated.

 

But as we sit here right now, fully vaccinated means 2 weeks after the second shot for the 2 dose course and 2 weeks after the first dot shot for the one dose course without regard to boosters. Interplay with other laws is going to continue to be a headache for all employers. Payment for the time to get tested and the tests themselves is going to continue to sort of be a question influx. And then, of course, we’re all sitting here with bated breath waiting on the legal challenges. For more information on the COVID 19 emergency temporary standard, Visit TRSA’s coronavirus resource center at www.trsa.org/covid19.

 

If you have any questions on the standard, send them to podcasts attrsa.org, and I’ll make sure to get it answered in a timely manner. Thanks again for tuning in to the podcast, and please subscribe, rate, and review our show on Apple Itunes, Google Podcasts, and Stitcher. Additionally, for the latest industry news and updates, follow TRSA on Facebook, Instagram, LinkedIn, and Twitter.