OSHA Releases Vaccination and Testing ETS

Emergency Temporary Standard

On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS by Dec. 5, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees. State plans will have 30 days to adopt the federal ETS or implement their own vaccination standard.

ETS Requirements – Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination and keep a roster of each employee’s vaccinations status. The ETS also requires employers to:

  • Develop, implement and enforce a mandatory COVID-19 vaccination policy; or
  • Create a policy allowing employees to choose to get a vaccination or wear a face covering in the workplace and have weekly COVID-19 testing done.

Weekly Testing Requirements – Employees who are not fully vaccinated must be tested weekly or within seven days before returning to work. The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements (See FAQ 6.G. for more information).

Paid Leave – Employers are also required to allow reasonable time—including up to four hours of paid time—to receive a primary vaccination dose. Reasonable time and paid sick leave are also required to recover from any side effects of the vaccination. Employees are required to provide immediate notice of a positive COVID-19 test or diagnosis, and will be removed immediately from work until return to work criteria are met.

Employee Notices – Employers are required to provide employees with a notice about the ETS, company’s policy, and several pieces of information (See FAQ 9.A. for more information).

ETS Exemptions – The requirements of the ETS do not apply to:

  • Employees who do not work with other individuals present;
  • Employees when they are working from home;
  • Employees who work exclusively outdoors;
  • Those covered under the Safer Federal Workforce Task Force;
  • Those covered by the health care ETS;
  • Employers that have fewer than 100 employees; and
  • Public employers in states without State plans.

Lawsuits Expected – A significant number of high-profile lawsuits (including state GOP governors and attorneys general, individual employers, and business groups) can be expected that may either delay or stop the new vaccine requirement. The enforcement date may be delayed while the courts (possibly including the Supreme Court) decide the fate of the new rule.

Other Federal Vaccination Requirements – In addition to the OSHA ETS, federal contractors and employees at facilities that treat Medicare and Medicaid patients are required to be fully vaccinated by Jan. 4.

Helpful Links:

Key Questions & Answers:

  • Can an employee be fired for not complying?
    • Yes. Employees, without an applicable sincerely-held religious belief or medical condition, can be terminated if they refuse to comply with the company’s vaccination policy.
  • How long will the ETS requirements last?
    • Probably (6) six months unless the rules are extended through a longer process.
  • How do employers determine if they meet the 100-employee threshold for coverage under the standard if they have fluctuating employee numbers?
    • The determination of whether an employer falls within the scope of this ETS based on number of employees should initially be made as of the effective date of the standard (November 5, 2021). If the employer has 100 or more employees on the effective date, this ETS applies for the duration of the standard. If the employer has fewer than 100 employees on the effective date of the standard, the standard would not apply to that employer as of the effective date. However, if that same employer subsequently hires more workers and hits the 100-employee threshold for coverage, the employer would then be expected to come into compliance with the standard’s requirements. Once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce. For example, if an employer has 103 employees on the effective date of the standard, but then loses four within the next month, that employer would continue to be covered by the ETS.
  • If an unvaccinated employee only comes into the workplace once a month is that employee required to be tested every seven days?
    • No. The employee does not need to be tested for COVID-19 on a weekly basis. However, the employer must ensure the employee is tested for COVID-19 within seven days prior to returning to the workplace and provides documentation of that test result to the employer upon return to the workplace. For example, if an unvaccinated office employee has been teleworking for two weeks but must report to the office, where other employees will be present (e.g., coworkers, security officers, mailroom workers), on a specific Monday to copy and fax documents, that employee must receive a COVID-19 test within the seven days prior to the Monday and provide documentation of that test result to the employer upon return to the workplace. The employee’s test must occur within the seven days before the Monday the employee is scheduled to report to the office, but it also must happen early enough to allow time for the results to be received before returning to the workplace.
  • If an employee is entitled to a reasonable accommodation due to a disability or sincerely held religious belief that prevents them from being vaccinated, would the employee still need to be tested weekly?
    • Yes. The ETS requires weekly COVID-19 testing of all un-vaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements. However, if testing for COVID-19 conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation. For more information about evaluating requests for reasonable accommodation, employers can consult the Equal Employment Opportunity Commission’s website: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
  • May a COVID-19 over-the-counter-test from a local pharmacy be used to satisfy the testing requirements under paragraph (g)?
    • Yes; however, to satisfy the requirements of the standard an over-the-counter (OTC) antigen test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Antigen tests indicate current infection by detecting the presence of a specific viral antigen. Most can be processed at the point of care with results available in about 15¬30 minutes. OSHA included the requirement for some type of independent confirmation of the test result in order to ensure the integrity of the result. This independent confirmation can be accomplished in multiple ways, including through the involvement of a licensed healthcare provider or a point-of-care test provider. If an OTC test is being used, the employer can validate the test through the use of a proctored test that is supervised by an authorized telehealth provider. Alternatively, the employer could proctor the OTC test itself.

Please contact us with any questions. We will continue to provide updates on this topic as new developments surface.

UPDATE: On Nov. 12, 2021, a U.S. federal appeals court affirmed its stay of the ETS requiring OSHA to “take no steps to implement or enforce” the ETS. Click here for the full update.