The Occupational Safety and Health Administration (OSHA) Temporary Emergency Standard (ETS), which requires vaccination against COVID-19 or at least weekly tests, applies to employers with at least 100 employees, with the exception of teleworkers. What are the practical implications of this exemption and the exemption for workers who only work outdoors?

“This law will certainly be challenged in court, but by narrowing the scope of the rule to exclude those unable to get to work or working outside, and by allowing tests and masks as an alternative, OSHA has made this more likely. ” will stand up to judicial review, “said Michael Menssen, attorney with Stoel Rives in Salt Lake City.

Note that while remote and only outdoor workers are exempt from vaccination or testing requirements, they are taken into account when determining whether an employer has 100 employees.

Remote worker exception

Employees who report to workplaces where no other people are present are not at serious risk from occupational exposure to COVID-19, as such exposure requires the presence of others, OSHA noted.

For those who work exclusively from home or from workplaces where no other employees or customers are present, such as

OSHA has therefore released those employees who do not come into contact with others for work purposes.

“ETS vaccination, testing, and face mask requirements do not apply to remote workers,” said Mini Kapoor, an attorney with Haynes and Boone in Houston. However, teleworkers are required to record the vaccination status of all employees.

Exception for employees who work exclusively outside

Workers who work exclusively outdoors were also exempted as they are at a much lower risk of being exposed to the coronavirus while at work, OSHA found. Their workplaces typically don’t have any of the features that normally allow broadcasting – such as indoor spaces, poor ventilation, and crowding -.

Overall studies found that the risk of transmission outdoors was less than 10 percent of the risk of transmission indoors, OSHA said.

Significant coronavirus infections have occurred in agricultural work environments, according to OSHA. However, it concluded that transmission in these environments is difficult to characterize as many workplaces in the industry involve both outdoor and indoor activities.

OSHA noted that there was no evidence at the time that the coronavirus posed a serious threat to general outdoor work activities.

Also, since most workers who work outdoors are likely to work indoors at least part of the time, the agency has also found that no more than 10 percent of workers who work primarily outdoors also work exclusively outdoors.

As a result, she estimated that only 9 percent of landscaping and gardening workers, 8 percent of construction workers, and 5 percent of highway maintenance workers would be exempt.

“The work of the employee really has to take place in the open air, except for buildings under construction where there are substantial parts of the structure, such as B. Walls and ceiling panels that would interfere with the natural flow of fresh air in the workplace, ”said Todd Logsdon, an attorney with Fisher Phillips in Louisville, Ky.

The OSHA estimate of workers who work exclusively outdoors does not take into account employers who only need to make minor adjustments to their current work practices to ensure that their workers are eligible for the outdoor leave, e.g. indoor location.

In order to be covered by the exception for employees who work exclusively outdoors, the employee may not routinely occupy vehicles with other employees as part of the work obligation, according to the ETS Frequently Asked Question 2.B.

The employee must work outdoors every working day, with the exception of the minimal use of indoor spaces where others can be present, such as the employee at home, such as a lunch break at home, noted Tyson Horrocks, an attorney at Holland & Hart in Las Vegas.

The exception for those who work exclusively outdoors is “extremely tight,” warned Brian Patterson, an attorney with Akin Gump in Houston and Dallas. “Employers should hesitate to apply for the exemption for employees who regularly spend more than 10 minutes total indoors in a work day.”

Switch employees to remote work?

An exception for remote workers “practically means that a large number of employees in the US are not covered by the ETS,” said Michael Elkins, an attorney at MLE Law in Fort Lauderdale, Fla., As long as the employee does the remote work. Definition in ETS fulfilled. “

Although employers would have fewer employees to comply with in this case, companies that rely on office collaboration could suffer from the move to remote work, Elkins noted.

In the past, feared declines in productivity and accountability made most employers reluctant to offer their employees remote working, although COVID-19 has changed that perspective for many companies, said John Ho, attorney at Cozen O’Connor in New York City. “Ultimately, it is a cost-benefit analysis that every single company must undergo – that is, the administrative costs and burdens of compliance with the ETS versus the operational impact on remote working,” said Ho.

The employer should consider any other possible impact that decision could have on the employee, the work and the morale of the rest of the job, Logsdon said.

The professionals would be one less person that the employer has to make sure to test weekly and reduce administrative costs. The downsides could affect employee morale of vaccinated workers who also want to work remotely, he noted.

There could also be discrimination claims when unvaccinated employees want to be in the workplace believing they are missing out on opportunities, Logsdon added.

Expect more remote work requests from employees who don’t want to be vaccinated or tested weekly, said Eric Hobbs, attorney at Ogletree Deakins in Milwaukee.

“Employers who require all employees to work remotely because of the ETS will set a precedent that the position can be held remotely,” said Patterson. “This makes it difficult for employers to deny the future [remote-work] Requests.”