On November 4, 2021, OSHA issued its Emergency Temporary Standard (“ETS”) on mandatory COVID-19 vaccination and/or testing. The ETS requires that employers with more than 100 employees require most employees get vaccinated or undergo weekly COVID-19 testing and masking. OSHA’s ETS preempts any conflicting state or local laws.

  1. What does the ETS require?

The ETS requires employers with more than 100 employees to implement written policies that either require vaccinations or require weekly testing and masking. Employees are considered “fully vaccinated,” and therefore are exempt from the testing and masking requirement, two weeks following a final dose of a COVID-19 vaccine.

  1. When does the ETS go into effect?

OSHA’s ETS goes into effect on or about November 5, 2021. Although the ETS is temporary and effective only for six months, it serves as a proposal for a permanent standard. The permanent standard, if adopted, must be finalized within six months after publication of the ETS. The compliance date for all provisions of the ETS, except COVID-19 testing for employees not fully vaccinated, is on or about December 5th. Employers must comply with COVID-19 testing requirements for employees not fully vaccinated by on or about January 5th.  Employer must implement their vaccine policies within 30 days of the effective date and employers have 60 days to establish a testing regime.

  1. How is the 100 employee standard determined?

In determining whether a company meets the 100-employee threshold, employers must include all employees across all U.S. locations, regardless of either the employees’ vaccination status or where the employees perform work. Exempt employees are also included to determine whether an employer meets the 100-employee threshold. Part-time workers count towards the 100-employee requirement, while independent contractors do not. Moreover, franchisor-franchisees, staffing agencies, and multi-employer worksites have specific rules regarding who constitutes an employee that must be counted towards the threshold. The ETS applies to any employer who has 100 employees at any time during the pendency of the ETS.

  1. Are any employees exempted from the ETS?

Yes, some employees of covered employers are exempt from the ETS. The ETS does not apply to either workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or those  subject to the requirements of the Healthcare ETS.

The ETS further does not apply to employees who are entirely remote and do not report to an office or workplace with others present, employees while working from home, or employees who work exclusively outdoors. An employee works “exclusively outdoors” when that employee works outdoors for the duration of every workday except for de minimis use of indoor spaces (including use of multi-stall restrooms).   Also excepted from the vaccine requirement are those employees for whom: a vaccine is medically contraindicated or medical necessity requires a delay in vaccination.  The standard also excepts employees who are legally entitled to a reasonable accommodation for disabilities or sincerely held religious beliefs.

  1. What is a written policy under the ETS?

Employers must create a comprehensive written policy, regardless of whether the employer plans to require vaccines or mandate testing and masking. This policy should include any exclusions from the policy, paid time and sick leave for vaccination purposes, the information required to be provided to employees, any testing and masking requirements, and disciplinary actions for those employees who do not comply with the policy. If an employer has employees who are both vaccinated and unvaccinated, the employer must develop and include the relevant procedures for two sets of employees.

  1. What records must employers make and maintain?

The ETS requires employers to determine and make a record of each employee’s vaccination status. These records are confidential medical information. Acceptable proof of vaccination status includes: (a) the record of immunization from a health care provider or pharmacy; (b) a copy of the COVID-19 Vaccination Record Card; (c) a copy of medical records documenting the vaccination; (d) a copy of immunization records from a public health, state, or tribal immunization information system; or a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). When none of the above can be obtained, a signed, sworn and dated employee attestation is acceptable.

For unvaccinated employees, employers must keep a record of each test result provided by each employee. All records must be kept for the duration of the ETS as confidential medical records.

  1. What types of testing and facial coverings are acceptable under the ETS?

An acceptable COVID-19 test is one that is FDA approved, administered via the test’s authorized instructions, and is not self-administered and self-read unless observed by the employer or authorized telehealth proctor. FDA-approved tests include those with Emergency Use Authorization. The tests must be completed once every seven days, irrespective of the number of days worked by the employee. An employee must provide their employer with a test result no later than the 7th day following the date on which they last provided a result.

An acceptable face covering has two layers of breathable fabric tightly woven and without any holes or openings. The face covering must fit snugly and completely cover the nose and mouth.

  1. What pay must employers provide to employees under the ETS?

An employer must provide up to four hours of paid leave to each employee, during work hours, to receive each of their COVID-19 vaccinations. The paid time may not be offset by any other leave that the employee has accrued. Additionally, employers must provide reasonable time and paid sick leave to recover from any side effects of the vaccine. This paid sick leave may be in the form of accrued sick leave but, if an employee does not have any sick leave accrued, leave must be provided. Employers are not, however, required to reimburse employees for transportation costs in traveling to and from the vaccine site(s).

If an employee chooses to get vaccinated outside of working hours, an employer is not obligated to grant paid time to the employee for the time spent receiving the vaccine. However, employers must still allow the employee reasonable time and paid sick leave to recover from any side effects that the employee experiences during scheduled work time. Employers are not required by the ETS to pay for the costs associated with testing employees who elect not to be vaccinated although state law or other agreements could require employment reimbursement of those costs.

  1. What information must be provided to employees under the ETS?

An employer must provide all employees, in a language and at a literacy level the employee understands, information on: (a) the requirements of the ETS and any employer policies and procedures established to implement those requirements, including specifics about vaccination availability and non-vaccinated employee requirements; (b) COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated; (c) OSHA’s prohibition against retaliation; and (d) the potential for criminal penalties for knowingly providing false information.

  1. What are an employer’s obligations when an employee tests positive for COVID-19?

If an employee tests positive for or is diagnosed by a licensed healthcare provider with COVID-19, the employer must immediately remove the employee from the workplace. The employee may not be permitted to return to work until: (a) the employee receives a negative COVID-19 nucleic acid amplification test result upon confirmatory testing; (b) the employee meets the return-to-work criteria in the CDC’s “Isolation Guidance;” or (c) the employee receives a recommendation to return to work from a licensed healthcare provider.

Following a positive COVID-19 test or diagnosis, the testing requirements of the ETS are suspended for the employee for 90 days.

You can review the ETS here.