OSHA Issues Emergency Temporary Standard on COVID-19 Vaccination and Testing for Large Employers

Almost two months after the initial announcement in President Biden’s COVID-19 Action Plan, on November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) regarding vaccination and testing requirements for employers with 100 or more employees.

Whether the ETS takes effect, however, is already in question as the Firth Circuit temporarily stayed the vaccine mandate pending further legal briefing from the United States and action by the Court. This could result in a permanent injunction in the states in the Fifth Circuit – Louisiana, Mississippi, and Texas – and an appeal up to the United States Supreme Court.

Notwithstanding this development, it is important that employers with 100 or more employees understand the requirements of the ETS and begin preparing for the possible enforcement of it beginning next month. Below find an overview of the ETS and its requirements.

Effective Date

  • December 5, 2021: Mask requirement for unvaccinated workers.
  • January 4, 2022: Fully vaccinatated or negative testing requirement on weekly basis for unvaccinated workers.

“Large” Employers

The ETS is limited to employers with 100 or more employees. The count is based on the total number of employees company-wide at the employer level, as opposed to by location. Meaning, a single corporate entity with multiple locations would count employees at all locations.

Excluded Employers

The ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force federal contractor guidance or healthcare entities subject to the Healthcare ETS.

Employees Not Subject to Vaccination/Testing Requirements

Certain employees are not subject to the vaccination and testing requirements set out in the ETS. These employees include:

  • Fully Remote employees: Employees who do not report to a workplace where other individuals (including coworkers or customers) are present.
  • Outdoor Work: Employees who work exclusively outdoors.
    • To be considered exclusively outdoors, the employee must work outdoors on all days for the entire workday except for de minimis use of indoor spaces (e.g., bathroom break), and must not routinely occupy vehicles with other employees.
    • Buildings under construction, where substantial portions of the structure are in place (e.g., ceilings, walls) that impede airflow, are not considered outdoors.

Importantly, these individuals are still counted towards the 100 employee threshold.

Paid Time Off to Get Vaccinated

Employers are required to provide employees with reasonable time (including up to 4 hours of paid time) to receive each COVID-19 vaccination dose, as well as reasonable time and paid leave to recover from any side effects from receiving a dose.

Mask Requirement

By December 5, 2021, employees who are not fully vaccinated are required to wear a mask/face covering when indoors or occupying vehicles with another person.

Testing Requirement

By January 4, 2022, employees who are not fully vaccinated will have to undergo testing for COVID-19 at least weekly. This must occur if an employee is in the workplace at least once a week or within seven days before returning to work, if away from the workplace for a week or longer. For individuals who have received a positive COVID-19 test or who have been diagnosed with COVID-19, the ETS provides and exemption from testing for the 90-day period following the positive test or diagnosis.

Under the ETS, the COVID-19 test must be one that is:

  • cleared, approved, or authorized, including in an Emergency Use Authorization, by the Food and Drug Administration to detect current infection with SARS-CoV-2 virus;
  • administered in accordance with the authorized instructions; and
  • not both self-administered and self-read, unless observed by the employer or an authorized telehealth proctor.

Examples of tests that satisfy these requirements include: tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests when specimen collection and processing is either done or observed by an employer.

The ETS itself does not contain a requirement to pay for the cost of the testing. However, the ETS acknowledges that other laws, regulations, or collective bargaining agreements could potentially require an employer to pay for the cost and time of testing.

Notification and Removal Procedures

Employers are required to have employees give prompt notice if they are diagnosed with or test positive for COVID-19. Such employees must be immediately removed from the worksite and kept away until they satisfy return-to-work criteria. The ETS itself does not require employers to provide paid time off as a result of such removal.

The ETS itself does not require contact tracing or the removal of individuals who have a close contact with someone who is COVID-19 positive.

Verifying Vaccination Status/Maintenance of Records

Employers are required to determine the vaccination status of employees through acceptable proof (e.g., CDC vaccination card), and maintain such records.

OSHA Reporting Requirements

Employers subject to the ETS must report work-related COVID-19 fatalities to OSHA within eight hours and work-related COVID-19 in-patient hospitalizations within 24 hours, upon learning of such incidences.

Notice to Employees/Policies and Procedures

The ETS requires employers who have at least 100 employees to institute either a mandatory vaccine policy or at least weekly testing and mask policy.

Covered employers are required to provide employees notice regarding (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Preemption of State and Local Laws to the Contrary

The ETS preempts state and local laws that are contrary to the ETS. That is, any state/local requirements that ban or limit an employer from requiring vaccination, face covering, or testing are preempted.

Next Steps

If they have not done so already, employers who determine they are covered, should create a written policy to explain how the employer will communicate to employees and comply with the new requirements. Further, employers should stay abreast of developments in the Courts that will determine whether the ETS is enforceable. The Labor & Employment attorneys at Hinckley Allen will stay up to date on all developments and are available to assist.

Follow Hinckley Allen on Twitter and LinkedIn for the latest news and updates.