OSHA Releases Emergency Temporary Standard on COVID Vaccinations and Testing for Employers With 100 or More Employees

Adam Hamel Headshot
Adam M. Hamel
Director, Litigation Department and Chair of the Employment Practice Group
Published: McLane.com
November 4, 2021
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The Occupational Safety and Health Administration has issued an Emergency Temporary Standard imposing significant new requirements on employers with 100 or more employees regarding COVID-19 vaccination, testing, face coverings, notification, and recordkeeping.  OSHA and the Biden Administration have said that this ETS is necessary to protect unvaccinated workers from the risk of contracting COVID-19 at work.  The agency estimates that the ETS will result in approximately 23 million additional workers getting vaccinated, and that it will prevent thousands of deaths and hospitalizations.

The ETS, which is more than 400 pages long, contains numerous provisions requiring employers to implement various policies and practices regarding vaccination and testing.  The following is a brief summary of the key points of the ETS.  McLane Middleton’s Employment Law Practice Group will present a webinar on Wednesday, November 10, 2021 at 10:00 am, to discuss the ETS and to respond to common questions employers are asking about the new regulations.

The ETS applies to employers with 100 or more employees

The ETS applies to all employers that have a total of at least 100 employees firm- or corporate-wide at any time that the ETS is in effect.  Full-time, part-time, temporary, remote, vaccinated, and unvaccinated employees across all company locations are all counted in determining whether the 100 employee threshold is met.  There are limited exceptions for employers that are covered by other standards, such as employers covered by the Safer Federal Workforce Task Force guidance, and healthcare settings where OSHA’s Healthcare ETS already applies.  The ETS does not apply to employees who do not report to a workplace where other individuals are present, employees who work from home, or employees who work exclusively outdoors, although these employees are still counted in determining whether the employer has 100 or more employees.

Covered employers must adopt vaccination policies

The ETS requires that all covered employers develop, implement, and enforce policies mandating COVID-19 vaccinations for covered employees, except that employers may instead establish a policy allowing unvaccinated employees to elect to undergo weekly COVID-19 testing and wear a face covering in the workplace.  OSHA has provided sample policy language that employers can adapt for their own use.

Employers must determine employees’ vaccination status

Covered employers must determine the vaccination status of each employee in the company.  Employers must also obtain acceptable proof of vaccination from vaccinated employees and maintain records of employees’ vaccination status, as well as keep an up-to-date roster of each employee’s vaccination status.  These records regarding vaccination status are considered employee medical records and must be treated as such by employers.

Employers must provide paid time off to get vaccines and to deal with vaccination side effects

The ETS requires employers to support employee vaccinations by allowing up to four hours of paid time off for employees to receive each vaccination dose, as well as reasonable time and paid sick leave to recover from vaccine side effects.  Employers may require employees to use available paid time off for this purpose, but must provide additional paid time off for employees who do not have available PTO.

Unvaccinated employees must be tested weekly

Employers are required to ensure that all employees who are not fully vaccinated – either because of a medical or religious exemption to a vaccine policy or because the employer has adopted a policy permitting employees to test in lieu of vaccination – are tested for COVID-19 at least weekly.  (Unvaccinated employees who are away from the workplace for more than a week must be tested within 7 days before returning to the workplace.)  The ETS does not require employers to pay any costs associated with testing.

Employees testing positive for COVID-19 must be removed from the workplace

Under the ETS, employers must require employees to promptly provide notice of a positive COVID-19 test or diagnosis, and any such employees must be immediately removed from the workplace until they meet applicable criteria for returning to work.

Unvaccinated employees must wear face coverings indoors

Any employee who is not fully vaccinated must wear a face covering when indoors or sharing a vehicle with another person, except when the employee is alone in a room with the door closed, or when wearing a face covering is infeasible or would create a greater hazard.  Employees may also remove face coverings briefly to eat or for identification purposes.  The ETS also prohibits employers from having policies or practices that prevent employees from wearing face coverings if they wish.

Employers must provide certain information to employees about vaccinations

The ETS requires employers to provide employees with information, in a language and at a literacy level that they can understand, information about the ETS and the policies the employer has adopted to comply with the ETS.  Employers must also provide employees with the CDC’s “Key Things to Know About COVID-19 Vaccines” document, as well as information about the ETS’s anti-retaliation protections, and about criminal penalties for providing false statements or documentation regarding vaccines or testing.

Employers must report work-related COVID-19 deaths and hospitalizations to OSHA

The ETS requires employers to notify OSHA of any work-related COVID-19 deaths within 8 hours of learning of them, and of any work-related COVID-19 in-patient hospitalizations within 24 hours.

Employers must make certain records regarding vaccinations and testing available

Employers are required to permit an employee, or a person authorized in writing by the employee, to inspect and copy vaccine and testing documentation that the employer maintains about the employee.  Employers must also provide upon request by an employee, information about the aggregate number of fully-vaccinated employees at a workplace along with the total number of employees at that workplace.

The ETS is effective immediately and includes compliance deadlines within 30 and 60 days

The ETS is effective on November 5, 2021, and employers must comply with all requirements other than testing within 30 days.  Within 60 days, employers must comply with the testing requirements for employees who have not received all doses required for a primary vaccine.  In effect, this means that employers have until January 4, 2022 to ensure that employees are fully vaccinated.

The forgoing list is just a brief summary of the main points of the ETS and is provided for general informational purposes only.  It is not intended as legal advice.  Employers are encouraged to review the information provided by OSHA about the ETS, and to consult with employment counsel about implementing the ETS in your own workplace.