OSHA Releases Temporary Standard Requiring Receipt of the COVID-19 Vaccine or Weekly Testing for Employers with 100 or More Employees

Thursday, November 18, 2021

Written by: Monica Munin

OSHA published its highly anticipated Emergency Temporary Standard (“ETS” or “the standard”) on November 5, 2021, mandating those private employers with 100 or more employees implement a policy that requires all employees to either receive one of the COVID-19 vaccines or submit to weekly COVID tests and wear a face covering while onsite at the workplace. The standard, which is not to be confused with the Healthcare ETS or the requirements for federal contractors, answers a myriad of employer questions regarding the logistics of implementing the vaccine or testing mandate. This blog post will summarize its salient points. The standard, which states that it preempts states from adopting and enforcing workplace requirements relating to the occupational health and safety issues of vaccination, face coverings, and testing unless authorized by an OSHA-approved state plan, is expected to be challenged in court. At the time of this writing, the standard currently stays pending a decision by the United States Court of Appeals for the Fifth Circuit. OSHA has suspended implementation efforts, and the case has been referred to the 6th circuit for further proceedings.

The standard applies to employers who have 100 or more employees at any time during which the standard is in effect. Employers are required to comply with all requirements by December 6, 2021, the sole exception being the COVID-19 testing of unvaccinated or partially vaccinated employees, which must begin January 4, 2022. At this time, the standard (as written and assuming the stay is reversed) will remain in effect for six months or until OSHA finds a grave danger from the virus no longer exists. Temporary, part-time, and seasonal employees must be included when counting the number of employees an employer has. Independent contractors and employees of a staffing agency placed in an employer’s workplace are not considered employees for the purposes of determining whether the ETS applies. Employees that work remotely full time, work exclusively outdoors, or who do not report to a workplace whether other individuals (including co-workers or customers) are present do not need to be vaccinated or submit to the weekly testing requirement; however, they must be counted toward the 100-employee threshold to determine whether a given employer must implement the requirements of the ETS.

As a preliminary matter, covered employers are required to determine and document the vaccination status of each employee. Employers must maintain a record of each employee’s vaccination status, require proof of that status, and maintain an updated list that indicates whether each employee is fully vaccinated, partially vaccinated, not fully vaccinated pursuant to a valid medical or religious accommodation, or not fully vaccinated because they have been unable to provide sufficient proof of their vaccination status. The ETS defines acceptable proof of vaccination status as either: a record of immunization from a health care provider or pharmacy; a copy of the COVID-19 vaccination record card; a copy of medical records documenting the vaccination, a copy of immunization records from a public health, state, or tribal immunization information system; a copy of any other official documentation that contains the type of vaccine administered, the dates the vaccine was administered, and the name of the healthcare professional or clinic site that administered the vaccine. Suppose an employee cannot produce any of the above-listed forms of proof of vaccination. In that case, the standard allows employers to accept a signed and dated statement by the employee indicating that they have lost or are otherwise unable to provide one of the previous forms of proof listed and attesting to the best of the employee’s ability, their vaccination status, their best recollection of the type of vaccine they received and the vaccination dates of administration. If an employer wants to accept an employee statement, they must ensure the statement requires employees to certify the truth of their statement subject to criminal penalties. Employers who collected information about their employee’s vaccination status prior to the release of the ETS are exempt from requiring the types of acceptable proof listed above for those employees for whom the employer already ascertained vaccination status. These records must be maintained in accordance with OSHA’s medical documentation requirements for as long as the standard remains in effect. Further, employers must make an employee’s own individual COVID-19 vaccine or test result documentation available within one business day. Employers are also required to disclose the total number of vaccinated employees along with the total number of employees at the workplace within one business day of such a request by an employee. To the extent OSHA requests a copy of an employer’s written COVID-19 policy, the aggregate number of fully vaccinated employees, the total number of employees, or any other documentation an employer must maintain under the standard, an employer is expected to comply within four business hours.

Employers subject to the ETS must establish, implement, and enforce either a written mandatory vaccination policy for all employees, which include language requiring new employees to be vaccinated as soon as practicable, or establish, implement, and enforce a written policy that allows employees to choose to provide evidence they are fully vaccinated or submit to weekly COVID-19 testing and wear a face covering while in the workplace. For those employers who choose to implement a mandatory vaccination policy, exceptions must be made for employees who are medically contraindicated for a COVID-19 vaccine, employees for whom medical necessity requires a delay in vaccination, and employees legally entitled to an accommodation for sincerely held religious beliefs or a disability. The standard requires employers to provide employees with a reasonable amount of time to acquire their vaccination doses (up to 4 hours of which must be paid time if the vaccine dose is administered during work hours) as well as paid time off to recover from the side effects from the vaccine (the ETS indicates that if an employer makes up to 2 days of paid time off available, they are likely in compliance with this requirement). Employers may require employees to use accrued sick leave, but they may not require employees to use another type of leave if their policy differentiates between sick and vacation leave, for instance. Suppose an employee qualifies for an exception to the vaccine mandate. In that case, they must submit to the regular COVID-19 testing and comply with face-covering requirements (unless the employee cannot comply with these requirements due to a medical necessity/disability or a conflict with a sincerely held religious belief. For those employers that elect to provide their employees with the option to receive weekly testing instead of the COVID-19 vaccine, employers must require unvaccinated employees to provide the employer with weekly COVID-19 test results (not to exceed 7 days between tests). Employees returning to work after a period of 7 days prior to returning to the workplace must be tested within 7 days of returning to the workplace. Employees that receive a positive COVID-19 test result or who are otherwise diagnosed with COVID-19 by a licensed healthcare provider must not be required to submit to weekly COVID-19 testing for a period of 90 days following the date of either the positive test result or the COVID-19 diagnosis. The ETS does not explicitly require employers to cover the costs associated with weekly testing but does contain language acknowledging that this may be required by other laws, regulations, or collective bargaining agreements

Employees who are not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes. The only exceptions to this requirement are situations when an employee is alone in a room with floor-to-ceiling walls and closed door, for a limited time while an employee is eating or drinking at the workplace, for a limited time for safety or security identification purposes, when an employee is wearing a respirator or facemask as defined in the standard, and where an employer can show that the use of a face covering is either infeasible or would create a greater hazard that would exclude compliance. Employees must be allowed to wear face coverings or face masks unless the employer can demonstrate this would create a hazard of serious injury or death. 

Regardless of employee vaccination status, all covered employers must require employees to notify the employer when they receive either a positive COVID-19 test or are diagnosed with COVID-19. Employees diagnosed or otherwise testing positive for COVID-19 must be immediately removed from the workplace and kept away from the workplace until they are either cleared to return to work by a licensed medical professional, receive a negative “nucleic acid amplification test” following a positive antigen test, or until the employee meets the CDC’s return to work criteria included in its “isolation guidance” (available at: https://www.osha.gov/sites/default/files/CDC’s_Isolation_Guidance.pdf). Employees removed from the workplace are not required to be provided paid time off (however, this could be required by other laws, regulations, or collective bargaining agreements). 

Finally, the ETS requires covered employers to inform employees (in a language and at a literacy level they understand) about the requirements of the ETS, provide each employee a copy of the CDC’s “Key Things to Know About COVID-19 Vaccines,” and information regarding the prohibition against employers from discharging or discriminating against employees for reporting work-related injuries or illness, filing a workplace safety complaint, or otherwise exercising their rights under the OSHA Act.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. To the extent you have any further questions about the ETS or other workplace issues, you are encouraged to contact Monica Munin at mmunin@vfnlaw.com.