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OSHA Releases Emergency Temporary Standard on COVID-19 Vaccinations and Testing for Employers with 100 or More Employees
Thursday, November 4, 2021

Today, the Occupational Safety and Health Administration (OSHA) published its long awaited Emergency Temporary Standard (ETS) that establishes minimum COVID vaccination, vaccination verification, face covering, and testing requirements for many employers throughout the United States. In short, subject to a few exceptions, private employers with 100 or more employees must ensure that all workers are fully vaccinated unless the employer requires unvaccinated employees to undergo weekly testing and wear a face covering.

What Does the ETS Require of Covered Employers? – Under OSHA’s new ETS, covered employers must do all of the following:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination (or alternatively test results), and maintain records and a roster of each employee’s vaccination status (or alternatively test results). Note that these records should be kept separately from an employee’s personnel file, should be considered confidential health information, and are important to maintain as proof of compliance in the event of an OSHA inspection.

  • Adopt one of the following two policy options: (a) mandate COVID-19 vaccinations for all employees; or (b) require all employees to elect either to get vaccinated or to undergo regular COVID testing and wear a face covering at work.

  • Accommodate employees who have a valid exemption from the vaccination requirements due to a medical reason or sincerely held religious belief. Such employees are not required to be vaccinated, but must be tested in accordance with OSHA’s new rules. If both the vaccine mandate and testing conflict with an employee’s sincerely held religious belief (which would be extremely rare), the employee may be entitled to a reasonable accommodation (e.g., working from home) absent undue hardship.

  • Provide up to 4 hours of paid time off for unvaccinated employees to receive each primary vaccination dose. Note that this paid time off must be in addition to any accrued vacation, sick or PTO time employers provide (i.e., employers cannot force employees to use and cannot deduct existing vacation, sick or PTO time). Employers cannot force employees to get vaccinated on their days off, although employees may of course voluntarily do so.

  • Provide “reasonable time” and paid sick leave to recover from any side effects experienced following each primary vaccination dose. Unlike paid time off for getting the vaccination, employers can require employees to use existing and accrued sick leave or PTO under certain circumstances. OSHA presumes that it would be “reasonable” for employers to “cap” this time off at 2 days of paid sick leave for each primary vaccination dose in the event an employee experiences side effects.

  • Ensure that each employee who is not fully vaccinated is tested at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). Although the costs of the testing may be paid by the employee, an employee’s time spent getting tested may be compensable time under the Fair Labor Standards Act (FLSA). Any unvaccinated employee who fails to timely provide a negative test result must be removed from the workplace until he or she provides a negative test result.

  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.

  • Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID test or is diagnosed with COVID by a licensed healthcare provider, and keep the employee out of the workplace until the CDC’s return to work criteria are met.

  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.

  • Provide all of the following notifications to each employee in a language and at a literacy level the employee understands:

    • (a) information about the requirements of this new OSHA rule and of the employer’s policies and procedures established to implement the rule;

    • (b) a copy of the CDC document “Key Things to Know About COVID-19 Vaccines” (https://www.cdc.gov/coronavirus/2019- ncov/vaccines/keythingstoknow.html);

    • (c) a policy providing for protections against retaliation and discrimination (e.g., OSHA’s Fact Sheet “Workers’ Rights under the COVID-19 Vaccination and Testing ETS” https://www.osha.gov/sites/default/files/publications/OSHA4159.pdf); and

    • (d) notice concerning laws that provide for criminal penalties for knowingly supplying false statements or documentation (https://www.osha.gov/sites/default/files/publications/OSHA4157.pdf).

  • Report “work-related” COVID fatalities to OSHA within 8 hours of learning about them, and “work-related” COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

Are There Exceptions? – There are a few notable exceptions as the ETS does not apply to:

  • Companies with less than 100 employees;

  • Federal contractors and subcontractors covered under the “Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.” Notably, however, federal contractors and subcontractors have a stricter vaccine mandate without the alterative to test employees;

  • Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (§ 1910.502); 

  • Employees who:

    • do not work where others are present;

    • work from home; or

    • work exclusively outdoors.

When Must Employers Comply? – OSHA’s ETS will be officially published and go into effect on November 5th, but employers must comply with all aspects of the ETS (except the testing requirements) by December 5th. In other words, covered employers must have policies in place, maintain records of vaccination status, and provide paid time off for vaccinations and their side effects by that deadline. The testing requirements have a deadline of January 4, 2022. This means that employees getting the Pfizer or Moderna vaccines must get their first shot in the next few weeks to ensure they are fully vaccinated by the deadline.

Penalties – Employers who violate the ETS can face significant fines potentially on a “per instance” and “per employee” basis.

There are several nuances and exceptions to these rules that a short client alert like this cannot adequately address. These include use of sick and other paid time off for vaccinations and side effects, whether employees must be paid when getting tested, application of the vaccine and testing requirements for those who recently tested positive, logistics for employees who only periodically work in the office, what testing options are acceptable, “pool testing” options, logistics for the isolation/removal of employees who have tested positive, and much more. 

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