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In response to the ongoing COVID-19 pandemic, the federal Occupational Safety and Health Administration (OSHA) published the COVID-19 Vaccination and Testing; Emergency Temporary Standard (Rules) on November 5, 2021. Along with rules for health care services and federal contractors, these new standards for private employers with 100 or more employees are the third, and most far-reaching part of a federal effort to increase COVID-19 vaccinations. While these presently only apply to private sector employers, MiOSHA has a statutory obligation to adopt state analogues, so we expect MiOSHA to issue a standard that will likely extend the Rules to Michigan’s public sector employers (e.g., any subdivision of the state) with 100 or more employees.

At a high-level, the Rules require:

• • covered employers to adopt and implement a policy requiring employees to either get the COVID-19 vaccine or submit to weekly COVID-19 testing.
  • mask-wearing in the workplace if an individual is not vaccinated.
  • paid time off for employees to get the vaccine and for their recovery from any adverse reactions, if necessary.
  •  a secure and confidential system of recordkeeping for vaccination status and medical information.
  •  employees who test positive for COVID-19 remain out of the workplace for a requisite isolation period.

Employers are not required to pay for the testing of unvaccinated employees. It will be critical to implement a secure and confidential system of recordkeeping for vaccination status and medical information.

Current Status: The Rules are the subject of several on-going legal challenges. The day after the Rules were published, the U.S. Fifth Circuit Court of Appeals issued an injunction blocking the Rules from taking effect pending further review from that Court. On November 16, 2021, the U.S. Sixth Circuit Court of Appeals was randomly selected to be the sole circuit court to hear the challenges that have been leveled across the country’s federal courts. OSHA announced on November 17, 2021, that it will suspend activities related to implementing and enforcing the Rules while litigation develops. Litigation may result in the Rules being struck down in their entirety, or in-part, but it remains a reasonable approach for covered employers to plan to comply (at a future point in time) in case the legal actions change nothing.

Read on for answers to some of the most common questions Michigan employers have about the detail and requirements of these OSHA Rules.

Who Must Comply?

The Rules apply to private sector employers that have a total of at least 100 employees at any time the Rules are in effect. Do not be misled by the fact that Rules, on their face, apply to private employers, not state or local governments. Michigan’s occupational safety law requires the MiOSHA to adopt administrative rules that are substantially similar to the federal occupational safety and health standard (MCL 408.1014(5) & (7)) and there is wide anticipation it will apply to local governments with 100 or more employees.

Covered employers must count all employees across all U.S. locations, regardless of employees’ vaccination status or where they perform their work. Part-time employees count towards the total, but independent contractors do not.

• • A single corporate entity with multiple work locations must count all employees at all locations for purposes of the 100-employee threshold.
  • In a traditional franchisor-franchisee relationship, in which each franchise location is independently owned and operated, the franchisor and franchisees are separate entities for employee count purposes.

Related Entities Being Considered a Single Employer for OSHA Purposes

The Rules specify two or more related entities may be considered a single employer for OSHA purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted. To date, OSHA has used two different tests to determine when multiple entities are a single employer for OSH Act purposes. With the Rules not specifying what test will be applied to determine when multiple entities will be deemed a single employer, there is presently uncertainty about what test OSHA will apply.

One version of OSHA’s “single employer test” evaluates four factors:

1. 1. Interrelated operations;
   2.  Common management;
   3.  Centralized control of labor relations; and
   4.  Common ownership.

One court has opined that under this four-factor test, no factor is dispositive; however, the first three are more significant.

In other contexts, OSHA has utilized a three-factor version of the “single employer test,” considering whether separate entities share:

1. 1. Common worksite such that the employees of both have access to the same hazardous conditions;
   2. Interrelated and integrated operations;
   3. Common president, management, supervision or ownership.

There is no clear indication of whether all three factors must be present to determine multiple related entities comprise a single employer. For example, the Second Circuit Court of Appeals has noted that it was not clear whether all three must be met to find that several entities handle safety matters as one company¹; however, the First Circuit implied that all three factors must be present². Despite this uncertainty, it is understood that OSHA is not typically willing to deem multiple enterprises to be a single employer based on only one factor being present (e.g., under both single employer tests previously used by OSHA, common ownership alone has not resulted in multiple enterprises being considered single employers for OSH Act purposes).

Whether OSHA will apply the three-factor or four-factor version of the single employer test in enforcing these new Rules remains to be seen. With this uncertainty in mind, individuals owning multiple enterprises are encouraged to consider both. The comment process for the Rules may prompt OSHA to clarify which version of the single employer test will apply.

Basic Obligations

The Rules are highly technical in detailing specific courses of action an employer is obligated to take. Under its basic structure, the Rules institute two enforcement dates so employers did not have to adopt all of the required provisions of the Rules at once. While OSHA has presently paused when the rules will go into effect, meaning there are presently no identified enforcement dates, the core requirements of the Rules can be summarized as follows:

• • By the First Enforcement Date (TBD) comply with all requirements of the Rules, except certain requirements on weekly employee testing (if elected).
  • By the Second Enforcement Date (TBD), if electing a policy that allows employees to remain unvaccinated, start a weekly testing protocol for certain employees who are not fully vaccinated.
  • Adopt the required written plan by the First Enforcement Date (TBD) detailing the employer’s compliant policies, including but not limited to:
    •  policy on vaccination (if any);
    • employer support for employee vaccination;
    • COVID-19 testing for employees who are not fully vaccinated;
    • employee notification to employer of a positive COVID-19 test and removal;
    • mandatory face covering for certain not fully vaccinated employees.

OSHA has made example versions of the written plan available on its website.

Note, the Rules do not eliminate a covered employer’s obligation to accommodate employees pursuant to federal anti-discrimination laws (e.g., the Americans with Disabilities Act or Title VII of the Civil Rights Act). Accordingly, covered employers must evaluate and permit exemptions for certain employees who are entitled to a medical or religious accommodation.

Employer’s Choice: Vaccinations or the Testing Alternative

Employers are allowed to decide whether to require all employees get vaccinated subject to accommodations for those medically or religiously unable to vaccinate (“Mandatory Option”) or choose not to mandate vaccinations but pursue a testing alternative (“Testing Option”). Employers who elect the Testing Option are required to establish a weekly COVID-19 testing protocol for employees who are not fully vaccinated.

Verifying Employee Vaccination Status

Since the vaccine has been introduced, employers have adopted a variety of strategies on polling their employees to determine vaccination status. The Rules specify 5 specific forms of “Acceptable Proof of Vaccination Status” and related recordkeeping requirements.

1. The record of immunization from a health care provider or pharmacy;
2. A copy of the U.S. CDC COVID-19 Vaccination Record Card
3. A copy of medical records documenting the vaccination;
4. A copy of immunization records from a public health, state, or tribal immunization information system; or
5. A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

If a vaccination record has been lost, an employer can rely on the employee’s written attestation if it contains language specified in the Rules.

Required Paid Leave for Vaccination & Recovery

Regardless of which approach an employer elects, the Rules require paid leave to be available to employees who receive a primary vaccination (what it takes to get fully vaccinated, less boosters) and recover from a primary vaccination:

Time to Receive the Vaccination: a minimum of at least four hours off at their regular rate of pay to receive the vaccination (per primary dose) if accomplished during work hours.

• • Employers may not offset this paid leave from other available paid leave.
  • There is no requirement to compensate if employees obtain the vaccine outside scheduled work hours.

Time to Recover: “reasonable time and paid sick leave to recover from side effects experienced following a primary vaccination dose.”

• • OSHA declined to define what constitutes a reasonable amount of paid sick leave, but the standards generally presume two days of paid sick leave per primary vaccination dose for side effects would be compliant.
  • This paid leave may be offset by accrued paid sick leave—or other available paid leave if an employer only offers one category of paid undefined leave to employees.

Testing Execution & Positive Employee Cases

The Rules include context-specific requirements for testing protocols for employees who are not fully vaccinated, but work in person at least once every seven days. These employees must be tested once every 7 days and submit proof of their test results to their employers. Out of concern about underreporting, an employer cannot rely on tests where an employee both self-administers and self-reads the result of their own COVID-19 test. Recall and review the record keeping requirements for these weekly tests such as:

• • Keeping record of every test unvaccinated employees submit;
  • Maintaining the confidentiality of the records;
  • Retaining the test records as long as the Rules are in effect:
  • Upon request, providing either the unvaccinated employee or OSHA the employee’s test results or vaccination status by the end of the following business day.

Whether an employer chooses to mandate vaccination or rely on weekly testing, the Rules require employees who are not fully vaccinated to wear face coverings and requires removal of any employee who tests positive for COVID-19 from the workplace. The face covering must be worn when indoors or when occupying a vehicle with another (subject to certain accommodations for those who cannot wear face coverings due to a medical condition or a protected religious reason). However, non-accommodated, not fully vaccinated employees need not wear a face covering in certain contexts, such as:

• • When an employee is alone in a room with floor to ceilings windows and a closed door;
  • For a limited time while an employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements;
  • When an employee is wearing a respirator or facemask in accordance with other OSHA standards; and
  • A very limited set of circumstances where employers can show that the use of the face covering is infeasible or creates a greater hazard.

The Rules also impacts how an employer interacts with its fully vaccinated workforce. Consider the new requirements for how long any employee who tests positive for COVID-19 must stay out of the workplace. An employee who tests positive for COVID-19 can only return to the workplace after one of the three occur:

1. Upon receiving a negative result on a COVID-19 nucleic acid amplification test (the new “NAAT” test) following a positive result on a COVID-19 antigen test (the most common screening test);
2. Meeting criteria in CDC’s “Isolation Guidance”:

• • At least 10 days have passed since the first appearance of symptoms;
  • At least 24 hours without a fever without the use of fever-reducing medication; and
  • Other symptoms are improving (excluding loss of taste and smell). Provided If a person has tested positive but never experiences symptoms, then the person can stop isolating after ten days from the date of their positive test; or

3. Upon receiving a return-to-work recommendation from a licensed healthcare provider.

Penalties for Non-Compliance

Like other standards released by OSHA, the Rules contain certain financial penalties for employers who do not comply with their requirement. Pursuant to the Rules, OSHA may issue citations for willful or egregious failures in complying with the Rules. This includes OSHA having the authority to issue separate penalties for each violation of the Rules. According to OSHA, the maximum for a serious violation is $13,653 per violation, while a willful violation may be up to $136,532 per violation.

Keep in mind that civil penalties for OSHA violations can be changed through the legislative process. In fact, draft language in the Build Back Better Plan would increase the maximum penalty for a serious violation of OSHA to $70,000 and also make the maximum penalty for a willful violation $700,000. As written, this proposed change would apply to any OSHA violation, not just Rules regarding mandatory vaccinations. Since this is still a bill and not yet a law, the proposed changes change to civil penalties for OSHA violations may never go into effect.

Conclusion

Employers of near and over 100 employees should “take inventory” and assess whether and to what extent these OSHA Rules will be applicable to them. Likely, that is drafting and preparing to adopt a written plan that meets all of the specified requirements.

How your business or local government responds to it will be a fact-sensitive inquiry; there is not a one size fits all approach! As always, please do not hesitate to contact us if you have additional questions about how OSHA’s recently issued Rules apply to you. Our dedicated team is continuing to monitor the situation as it develops.

1. 1. Solis v Loretto-Oswego Residential Health Care Facility, 692 F3d 65, 76 (CA 2, 2012)
   2. AC Castle Constr Co, Inc v Acosta, 882 F3d 34, 41 (CA 1, 2018)

This communication is not intended to constitute legal advice. COVID-19 regulations and guidelines are evolving rapidly and each of your circumstances are unique, so we encourage you to reach out to us if you have questions about this or other COVID-19 related government action.