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November 15, 2021 | HR Compliance | Posted by Bob Greene, Senior HR Industry Analyst at Ascentis

Top 6 Hidden HR Compliance Requirements for OSHA's New Vaccine Mandate ETS

When OSHA published the new Vaccine Mandate Emergency Temporary Standard (“ETS”) in the Federal Register on November 5, 2021 – all 490 pages of it – the broad strokes of compliance were as expected and previously announced by President Biden. These included applicability only to employers of 100 or more employees, a requirement that those employees receive the vaccine (subject to recognized ADA-based accommodations), and an option for employers to adopt a minimum weekly test-out alternative to the vaccine, for some or all of their employees.

But it requires a much closer reading of OSHA’s release and its supporting materials (Q&A, training slide deck) to uncover the specific aspects or the order that present the greatest challenges to HR professionals in policy, practice, and particularly technology support. And despite the fact that the new ETS, as expected, is being challenged in court, with most employment law experts advising employers to prepare to comply, here are the top six most significant “surprises” we’ve found in the ETS so far.

1. Which ETS or Executive Order Applies to Which Companies? 

As we pointed out in our blog post of September 13, there are now FOUR separate, but intertwined executive branch mandates or directives impacting COVID vaccination plans for employers in the US:

  • The OSHA COVID-19 Healthcare Emergency Temporary Standard of June 21, found at 29 CFR 1910, Subpart U. Applicable to most, but not all US healthcare employers (including those with fewer than 100 employees), this ETS notably did NOT include a vaccine mandate when initially issued. However, on November 4, the Centers for Medicare & Medicaid Services issued an interim final rule mandating vaccines for employees of these companies, presumably to bring this ETS in line with the private sector ETS. This ETS impacts approximately 17 million employees across the US.
  • E.O. 14043, “Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,” which applies to all federal employees within the executive branch (but notably not the legislative or judicial branches. Personnel of all branches of the US military are included, making the overall coverage of this order approximately 4 million US employees.
  • E.O. 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors” which applies to employees of certain federal contractors (both prime and sub). Exempted from this order are contractors which are engaged solely in the manufacture of products for the federal government (no services provided), and those which qualify under the “simplified acquisition threshold” (generally, $250,000 contract limit.)
  • The OSHA COVID-19 Private Sector Employer Emergency Temporary Standard of November 5. Applicable to almost all private sector employers of 100 or more employees (and, in total, approximately 84 million employees across the US), this ETS includes a 30- (December 6) or 60-day deadline (January 4) for all of its requirements (but see the end of this post for the possible delay of those deadlines based on action by the Fifth Circuit Court of Appeals). This ETS is also the order that provides for the most confusion about coverage under the four orders. For example, an employer which is both a federal contractor or subcontractor for some of its employees, but a non-contractor for others, could be covered by both E.O.14042 and the Private Sector ETS. Healthcare employers, depending on the services they offer, may be covered by both of OSHA’s ETSs, for portions of their populations. And there are some non-intuitive OSHA guidance specifics as well: (i.) US Postal Service employees are covered by the private sector ETS (not the federal employee executive order), and (ii.) state and local government employee coverage by the private sector ETS will depend upon whether the state involved has adopted an OSHA “state plan”. Employers should consult OSHA’s ETS-specific Q&A for the best guidance available on these coverage issues.

2. Counting Employees to Determine Coverage by the Private Sector ETS Has Very Few Exceptions

Those who might have assumed that 100% work-from-home/remote workers could be excluded from the employee count for ETS enforcement may have been surprised by the new rules. In fact, the ETS Q&A includes an explicit example: “Do employees who are working from home count toward the 100-employee minimum?” And the answer supplied by OSHA is, “Yes. If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees. However, the standard’s requirements would only apply to the 50 employees who work in the office at least part time around other individuals, and not to those 100 employees working exclusively from their homes”.

It is important for a full understanding of the ETS requirements to always keep in mind that the process of determining employer coverage (100 employee threshold) is separate and uses a different standard that determining individual employee coverage under the “shots-or-weekly-testing” rules.

Similarly, part-time, seasonal, temporary (directly employed) and minor employees are all included in the employee count for 100-employee determination. The only major exception worker classifications are independent contractors (non-W2) and those who work entirely outside the US.

3. When Counting Employees to Determine Coverage, Timing is Everything 

The ETS clarifies that initial employer coverage via counting all applicable employees and comparing to the 100-employee threshold is to be made as of the effective date of the order, November 5. Any employer having 100 or more active employees on that date is covered by the mandate ETS and remains covered until the ETS is lifted, even if they should drop below 100 employees later on. For employers who had 99 or fewer employees on November 5 are exempt from the mandate as of that date, but must monitor their employee counts daily, and if they rise above 99 employees at any later date while the ETS is in effect, become covered as of that date and remain covered until the ETS is lifted.

4. Some of the ETS’s Data Collection and Retention Requirements Must Be Inferred

Most HR professionals anticipated, and the ETS confirmed, that employers must solicit, collect and retain a copy of each vaccinated employee’s vaccine credentials (CDC card) or, where the employee has lost the CDC card and is unable to obtain a copy, a vaccination attestation with an appropriate jurat (a certification “under the threat of criminal penalties”). On that CDC card will be listed the dates, vaccination provider, brand of vaccine and lot number of the vaccines received. The ETS does not explicitly dictate to employers which of these fields of information should be retained in their HRMS/HCM systems.

However, the ETS does require covered employers to produce an “Employee Vaccination Roster” which must include, per the regs: “…for each one whether they are fully vaccinated, partially (not fully) vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status.” For an HRMS to produce a vaccine roster that identifies whether an employee is fully vaccinated, partially vaccinated, or unvaccinated, recording the vaccine brand (to differentiate between vaccines that require two doses or only one) is essential. Employers will likely need to have a “checkbox” field within their systems to signify employees who have approved exemptions from vaccination, although the ETS regulations do not yet require distinguishing the reason for exemption on the employee vaccination roster. As a reminder for any covered employer tempted to simply defer assembling their employee vaccination roster until it is requested by an OSHA investigator, the ETS regulations require it to be submitted within four business hours of such OSHA request.

5. OSHA Hauls Out “The Big Guns” for Enforcement

It is rare that an HR-related records violation can result in criminal penalties for HR practitioners – rarer still for the employees involved. Intentional violations of HIPAA’s disclosure rules around personal health information are one of the few exceptions, but they carry an extraordinarily high burden for the government – proof of malicious intent or fraudulent purpose for personal gain. However, in the case of this new ETS, OSHA, perhaps in part inspired by Hawaii’s arrests of multiple visitors for vaccine card fraud during their state COVID-19 quarantine, isn’t fooling around. The ETS warns that it is a violation of 18 USC § 1001 for an employee to present fake or forged vaccine credentials to an employer (and therefore to OSHA). That’s the same statute that is used when witnesses lie to the FBI (and under which Martha Stewart went to prison). It is punishable, theoretically, by a fine of up to $10,000, or up to 5 years in prison, or both! The ETS explains that, while under normal circumstances, such draconian government action would apply only to the employee, and employers are under no obligation beyond due diligence to detect fraud in the documents submitted, it does warn that “…these same prohibitions on false statements and documentation apply to employers. If an employer knows that proof submitted by an employee is fraudulent, and even with this knowledge, accepts and maintains the fraudulent proof as a record of compliance with this ETS…,” the employer may be subject to the same penalties.

6. For Multiple Required Employee Communications, OSHA States That “Training is Not Required.”  Really?

The ETS requires four separate communications be given to every employee, to ensure their understanding of the vaccine mandate. The ETS gives employers wide latitude in how those communications are made, and offers examples of e-mails, printed fact sheets, and/or in-person employee meetings. Ultimately, the ETS advises, employers may use “…any method of informing employees so long as each employee receives the information specified in a language and at a literacy level they understand.”

The four specific topics on which employee communications are mandated include:

  • The employer’s adopted policies under this ETS, including: i) The employer’s vaccine mandate policy, including whether or not the employer is offering a weekly testing alternative ii) The process that will be used to determine vaccination status iii) The time and pay/leave which employees are entitled to for vaccinations and any side effects experienced following vaccinations iv) The procedures employees need to follow to provide notice of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider v) The procedures employees are to use to request records vi) Additional information to unvaccinated employees, including information about the employer’s policies and procedures for COVID-19 testing and face coverings.
  • Information about COVID-19 vaccine efficacy, safety and the benefits of being vaccinated (by providing the document, “Key Things to Know About COVID-19 Vaccines”, available at the CDC website.)
  • Information about the requirements of 29 CFR 1904.35(b)(1)(iv), which prohibits an employer from discharging or in any manner discriminating against an employee for reporting work-related injuries or illness, and Section 11(c) of the Occupational Safety & Health Act, which prohibits the employer from discriminating against an employee for exercising rights under, or as a result of actions that are required by, this ETS. Section 11(c) also protects employees from retaliation for filing an occupational safety or health complaint, reporting a work-related injury or illness, or otherwise exercising any rights afforded by the OSH Act.
  • Information about the prohibitions of 18 U.S.C. § 1001 and of § 17(g) of the OSH Act, which provide for criminal penalties for knowingly supplying false statements or documentation (such as a falsified vaccine card or substitute personal affidavit.) The ETS Q&A finishes the Q&As on employee communication by stating: “There are no formal training requirements”. But given the serious penalties associated with an employee’s possible attempt to falsify vaccination credentials (see #5, above), and the perceived complexity of the rules around the vaccine-or-testing mandate overall, will employers want to leave education about these new rules to a fact sheet “drop”? Leading edge employers wanting to fully embrace the spirit of the vaccine mandate they put into place – and at this point, it appears a majority of employers may have already decided to do so – will likely want to use their learning management systems to offer employees a few minutes of in-depth explanation for why these new rules have come about, and what it takes for everyone to comply with them.

Want to know more about the new vaccine mandate ETS? The above points, and several others, will be reviewed in-depth at Ascentis’ free public webinar, “The Top Ten Surprises in the New OSHA Vaccine Mandate ETS,” on November 22nd.

A Note About Legal Challenges to the New OSHA Vaccine Mandate ETS:

Within the first few days of publication of the private sector employee vaccine mandate, suits had been filed opposing the mandate in 11 of the 12 circuit courts of appeals around the country. The Fifth CCA, based in Louisiana, immediately blocked the mandate with a temporary injunction. The next step in the process is for the 11 circuits to conference to decide which circuit court of appeals will hear the case “on the merits,” and this is scheduled for November 16. At various points in the legal process, either “side” may decide to take the issue to the Supreme Court. For a great, non-jargony read on the legal process from here, see Littler’s excellent article. With confusion about how soon the legal challenges will be resolved, many employment law experts are advising their clients to continue with decision-making and policy implementation.

Bob Greene currently serves as Senior HR Industry Analyst at Ascentis. Bob’s 40 years in the human capital management industry have been spent in practitioner, consultant and vendor/partner roles. As practitioner, he managed payroll for a 5,000-person bank in New Jersey. As consultant, he spent 8 years advising customers in HRMS, and payroll and benefits system design as well as acquisition strategies. Bob also built a strategic HCM advisory practice for Xcelicor (later acquired by Deloitte Consulting.)