OSHA’s Emergency Temporary Standard: What Schools Should Know

On Nov. 5, 2021, the Occupational Safety and Health Administration (“OSHA”) published its highly-anticipated COVID-19 Vaccination Emergency Temporary Standard (“ETS”). Although the ETS does not apply to Michigan public schools, the Michigan Occupational Safety & Health Administration (“MIOSHA”), which governs Michigan public school districts (“school districts”), is expected to issue a State Plan adopting the ETS. If adopted, MIOSHA must complete its State Plan within 30 days of the ETS publication date.

The MIOSHA State Plan must be at least as effective as the OSHA ETS. MIOSHA may also choose to adopt a State Plan that is more protective. Below is a “Nuts and Bolts” summary of OSHA’s COVID-19 Vaccination ETS and a list of the Top 10 Frequently Asked Questions. Clark Hill has prepared this guidance in anticipation that MIOSHA will adopt the OSHA ETS as written, but Clark Hill will update this guidance if MIOSHA adopts a State Plan that adds more protective requirements than exist in the OSHA ETS.

Nuts and Bolts of the ETS

The ETS applies to school districts with a total of 100 or more employees. Third-party contractors, such as individuals from EduStaff, Dean Transportation, Chartwells, and others contracted through a third-party vendor, management company, or similar contracting entity do not count towards a school district’s 100 or more employee count. They will be counted by the contracting entity.

By Dec. 6, covered school districts must:

• Establish a COVID-19 Vaccination Policy.
  • School districts must develop, implement, and enforce a mandatory COVID-19 vaccination policy. Alternatively, school districts may adopt a policy requiring employees to either become vaccinated or choose to undergo regular COVID-19 testing and wear a face covering when indoors and when occupying a vehicle with another person for work purposes.

• Obtain Proof of Employee Vaccination Status.
  • School districts must obtain “acceptable proof” of the vaccination status of each employee. This determination must include whether the employee is fully vaccinated, which is two weeks after the full required vaccine course is completed, or partially vaccinated. School districts must also maintain a record and roster of each employee’s vaccination status and preserve acceptable proof of vaccination while the ETS remains in effect, which is estimated to be six months.
• Issue Notice to Employees.
  • School districts must provide employees the document, “Key Things to Know About COVID-19 Vaccines,” as well as notify employees of the prohibitions against discharge, retaliation, and discrimination for reporting work-related injuries or illness and of the penalties associated with providing false statements or documentation.

• Remove Employees with COVID-19 Diagnosis.
  • School districts must require each employee to promptly notify them of a positive COVID-19 test result or of a licensed healthcare provider’s diagnosis of COVID-19, and school districts must immediately remove any employee who receives a positive test or diagnosis. Employees who test positive or are otherwise diagnosed cannot return to the workplace unless they receive a negative COVID-19 test result, meet the return to work criteria in the Center for Disease Control’s “Isolation Guidance,” or receive a recommendation to return to work from a licensed healthcare provider.
• Report COVID-19 Fatality and In-Patient Hospitalizations.
  • School districts must report to OSHA (or MIOSHA) each work-related COVID-19 fatality within 8 hours of learning about the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours of learning about the in-patient hospitalization.
• Require all Nonvaccinated Employees to Wear a Face Covering.
  • School districts must require all nonvaccinated employees to wear a face covering. The only exceptions to this requirement are: (1) when an employee is alone in a room with floor to ceiling walls and a closed door; (2) for a limited time while eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements; (3) when an employee is wearing a respirator facemask; or (4) where the school district can show use of face coverings is infeasible or creates a greater hazard that would excuse compliance (such as when it is important to see the employee’s mouth for job-related reasons).

Clark Hill has developed model Policies and Administrative Guidelines (“AG”) related to the ETS. Please contact your Clark Hill attorney regarding information about obtaining the Policies and AG.

By Jan. 4, 2022, covered school districts must:

• Require Regular COVID-19 Testing for Nonvaccinated Employees.
  • If a school district adopts a policy requiring employees to either become vaccinated or choose to undergo regular COVID-19 testing, the school district must require employees who are not fully vaccinated to undergo regular testing starting Jan. 4, 2022. School districts must maintain a confidential record of each test result provided by each employee. Please note: the two-week window of “fully vaccinated” following a COVID-19 dose is not included in this requirement. (e.g. an employee that received their second dose of the Moderna vaccine on Jan. 2, 2022, would not be required to be tested starting Jan. 4, 2022).

Top 10 Frequently Asked Questions 

To see a comprehensive list of FAQs from OSHA regarding the ETS, please visit here.

1. What is “acceptable proof” of an employee’s vaccination status?

“Acceptable proof” of an employee’s vaccination status may include: (1) a record of immunization from a health care provider or pharmacy; (2) a copy of the 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, dates administered, and the name of the health care professional or clinic site administering the vaccine. Vaccination status and documentation, once obtained by the school district, should be kept in a confidential file separate from employee personnel records.

If an employee is unable to provide “acceptable proof” of vaccination, the employee must provide a signed and dated statement attesting to their vaccination status (fully or partially vaccinated), attesting that they have lost and are otherwise unable to produce proof of their vaccination status, and including the following language:

“I declare that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”

Any employee who does not provide acceptable proof of vaccination status, or who refuses to provide acceptable proof, must be treated as not fully vaccinated.

2. If a school district adopts a policy permitting regular COVID-19 testing in lieu of vaccination, how often must employees who are not fully vaccinated be tested?

The frequency of employee COVID-19 testing depends on how often the employee reports to a workplace where other individuals are present.

• An employee who reports at least once every seven days must be tested for COVID-19 at least once every seven days. The employee must provide documentation of the most recent test result to the school district no later than the seventh day following the date on which the employee last provided a test result.
• An employee who does not report during a period of seven or more days (for example, teleworking for at least one week) must be tested for COVID-19 within seven days prior to returning to the workplace. The employee must provide documentation of the test result to the school district upon return to the workplace.

3. If a school district chooses to administer COVID-19 testing on-site for its unvaccinated employees, what are the acceptable COVID-19 tests that can be used?

A school district may choose to administer COVID-19 testing on-site for unvaccinated employees. This may help alleviate demands to bargain the costs of testing and/or travel time for testing. School districts should have trained staff administer the COVID-19 tests and the testing should be done in an area to maintain the privacy of the employee. Acceptable COVID-19 tests include “rapid tests” and/or tests that are:

1. Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
2. Administered in accordance with the authorized instructions; and
3. Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

School districts previously administered COVID-19 “rapid tests” to comply with MSHAA’s athletic COVID-19 testing requirements earlier this year. The tests used were FDA approved and may continue to be used by school districts for regular COVID-19 testing.

4. What if an employee does not provide documentation of a COVID-19 test result by the required date?

If an employee does not provide documentation of a COVID-19 test result by the required date, the school district must keep the employee from the workplace until the employee provides a negative test result. This may also be considered insubordination, subject to discipline. These situations should be reviewed on a case-by-case basis, and school districts should comply with its discipline policies and the terms of their collective bargaining agreements (including progressive discipline) and consult with legal counsel if needed.

5. Must an employee who is not fully vaccinated continue testing even if they have been recently diagnosed with COVID-19?  

Not for the first 90 days after diagnosis or positive test. When an employee has received a positive COVID-19 test result or has been diagnosed with COVID-19 by a licensed healthcare provider, the school district may not require the employee to undergo COVID-19 testing for 90 days following the date of the positive test or diagnosis.

6. What paid leave requirements are mandated?

School districts are required to provide up to four hours of paid leave at the employee’s regular rate of pay to receive each of their primary vaccination doses.

School districts also must provide a “reasonable amount” of paid sick leave to recover from any side effects experienced following any primary vaccination dose. Although the ETS does not define what a “reasonable amount” of paid sick leave is, OSHA has identified in its FAQs that up to two days, per dose, is an amount of time that will be considered to be in compliance with the ETS.

If an employee already has accrued paid sick leave or PTO, the school district may require the employee to use the accrued sick leave or PTO when recovering from side effects experienced following a primary vaccination dose. If a school district offers multiple types of paid leave (sick, vacation, personal, etc.), the school district cannot require an employee to use any other type of leave other than sick leave. If an employee does not have any accrued sick leave, the school district must provide a “reasonable amount” of sick leave to recover from any side effects from the vaccine as described above.

7. Is there anything that a school district is not required to pay for?

Yes. The ETS does not require a school district to provide sick leave to an employee who is removed from the workplace as a result of a positive COVID-19 test or diagnosis. Also, the ETS does not require school districts to pay for any costs associated with COVID-19 testing or face coverings for unvaccinated employees.

However, if a school district adopts a mandatory vaccination policy without the option of regular testing, the school district may be required to pay for the cost of COVID-19 testing for an employee as a disability (ADA) or religious (Title VII) accommodation.

8. What collective bargaining implications, if any, are there?

The paid leave requirements discussed in Q.6. may invoke collective bargaining obligations with a school district’s union groups. For example, a union may want to bargain the “reasonable amount” of paid sick time to recover from any side effects of the vaccination. Although a school district is not required to provide additional paid sick leave to an employee who is removed from the workplace as a result of a COVID-19 test or diagnosis, many school districts have engaged in collective bargaining to offer additional sick leave to employees who test positive or have been diagnosed with COVID-19.

Unions could also demand to bargain the impact of the ETS vaccination, testing, and masking requirements, as these requirements would likely impact terms and conditions of employment. Impact bargaining may address paid time to employees with a positive COVID-19 test or diagnosis and compensation for costs associated with COVID-19 testing and face coverings. School districts should review their current collective bargaining agreements to determine any obligations to bargain.

9. What if an employee refuses to comply with the school district’s COVID-19 vaccination and/or testing policy?

If an employee refuses to comply with the school district’s COVID-19 vaccination and/or testing policy and has not received an accommodation based on a disability or sincerely held religious belief, the employee may be subject to disciplinary action up to and including termination. We note, however, that the school district must be sure to comply with its discipline policies and the terms of its collective bargaining agreements (including progressive discipline). If, for example, the employee at issue is a tenured teacher, the school district should be sure any discipline or termination proceedings are in compliance with the Michigan Teachers’ Tenure Act. School districts are encouraged to contact legal counsel when faced with an employee that refuses to comply with its policies or procedures.  

10. Are school districts required to consider accommodations to its COVID-19 policy based on employee medical conditions or sincerely held religious beliefs? 

Yes. The Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 may entitle employees to reasonable accommodations from a school district’s vaccination and/or face covering policy based on a disability or sincerely held religious belief. The Equal Employment Opportunity Commission (EEOC) has provided technical assistance regarding COVID-19 workplace accommodations and discrimination here.

Clark Hill has developed ADA and Title VII accommodation request forms for school districts. Please contact your Clark Hill attorney regarding information about obtaining the forms.  

If you have any questions about the ETS, or would like to request any of the Clark Hill resources referenced in this e-alert, please contact Jessica Milligan (jmilligan@clarkhill.com), Kara Rozin (krozin@clarkhill.com), or another attorney on the Clark Hill’s Education team.