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November 5 2021

OSHA Issues Emergency Vaccination and Testing Standard for Employers With 100+ Employees

By: Dominic T. Clolinger

On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) released its Emergency Temporary Standard (“ETS”) relating to COVID-19 vaccination and testing requirements.  The ETS requires all employers with 100 or more employees to adopt either 1) a written mandatory full-vaccination policy or 2) a written policy which permits employees to either become fully vaccinated or undergo weekly testing and wear a face covering.  How the ETS effects individual employers is an employer-specific inquiry.  However, the general points of the ETS are as follows:

  • Covered Employers:  As stated above, all employers with more than 100 employees (firm or corporate-wide) as of the effective date of the ETS are subject to the ETS. An employer’s total employee count should include part-time workers, employees who work from home, and employees at different worksites.  Independent contractors are not counted toward the 100-employee total.
  • Covered Employees:  The determination as to whether a particular employer is covered by the ETS should be made separately from whether individual employees are covered by the ETS.  Even if an employer is covered by the ETS, specific employees may not be.  Employees who do not report to a workplace where other individuals are present, employees working from home, and certain employees who work exclusively outdoors are not subject to the ETS requirements.  
  • Mask Requirement:  Employers must have a policy which generally requires unvaccinated individuals to wear a face covering.  A face covering must consist of at least two layers of material that is either tightly woven or non-woven, and the face covering must not have visible holes or openings.
  • Testing Frequency:  Each employee who is not fully vaccinated must be tested for COVID-19 at least weekly or within 7 days before returning to work.  Testing requirements are suspended for 90 days following a positive COVID-19 test.
  • Test Requirements:  Tests must be cleared, approved, or authorized by the FDA and administered in accordance with authorized instructions with the noted exception of not allowing tests that are both self-administered and self-read by the employee unless observed by the employer or an authorized telehealth proctor.
  • Test Administration:  Employers have the flexibility to select the testing scenario that is most appropriate for their workplace.  Some employees and employers may rely on testing that is conducted by a healthcare provider (e.g., doctor or nurse).  However, some  employers may simply require that employees perform and read their own over-the-counter test under authorized supervision.
  • Time Needed to Vaccinate:  The ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose.
  • Employers Not Required to Pay for Testing: The ETS does not require employers to pay for any costs associated with testing or to pay for face coverings.  A particular employer’s collective bargaining agreement may alter this rule. However, in certain circumstances, an employer may be required, pursuant to the Fair Labor Standards Act, to pay for the time it takes an employee to be tested.
  • Records: Employers are required to maintain records of each employee’s vaccination status and, if the employee is unvaccinated, their test results.  Such records must be made available for the employee to review.  OSHA may request written records required by the ETS, including vaccination policies.  This information is subject to applicable legal requirements for confidentiality of medical information.
  • Information to be Provided to Employees:  Employers must provide the following to employees:  the requirements of the ETS, the requirements of the employer vaccination policy, a CDC document entitled “Key Things to Know About COVID-19 Vaccines,” information about protections against retaliation and discrimination, and information regarding criminal penalties for providing false vaccination or testing information. 
  • Hospitalization and Fatalities:  The ETS requires employers to report work-related COVID-19 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.

The ETS requires vaccination or testing requirements to be met prior to January 4, 2022.  All requirements other than testing for employees who have not completed their entire primary vaccination doses must be met within 30 days, with the deadline falling on December 5, 2021.  Note, however, that MIOSHA—OSHA’s state counterpart—has 30 days to implement the standard. MIOSHA’s standard must be identical or “at least as effective as” OSHA’s ETS.  MIOSHA has indicated that it has no intent to make its standard more stringent than the ETS.  It is unclear whether MIOSHA will make the standard effective immediately upon adoption.  To assist employers with compliance, OSHA has provided an ETS summary and vaccination policy samples on its website.

The above summary is intended to provide employers with a general overview of the ETS.  As stated above, determining what actions are necessary under the ETS is an employer-specific inquiry. If employers have specific questions about how the ETS affects their business, employers should contact Nikole Canute, Scott Dwyer, or Nate Wolf as soon as practicable.