OSHA Issues Emergency Temporary Standard Mandating COVID-19 Vaccinations, or Testing/Face Covering for Employers
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS), requiring that employers with 100 or more employees develop, implement and enforce a mandatory COVID-19 vaccination policy. Under the ETS, employees who choose to remain unvaccinated must undergo regular testing and wear a face-covering in the workplace. The ETS also requires employers to provide paid time for workers to be vaccinated and to allow for paid leave to recover from any side effects related to the vaccine. Employers must comply with requirements within 30 days and begin regular COVD-19 testing within 60 days of the effective ETS date (November 5, 2021).
In an OSHA National News press release, OSHA holds that the ETS covers approximately two-thirds of the United States’ private-sector workforce.
Below are some Frequently Asked Questions regarding the ETS:
To whom does the ETS apply?
- Employers with 100 or more company-wide employees. The 100 employee threshold, is determined on a company-wide basis, not on a per-worksite basis. The 100 employee threshold includes temporary workers, seasonal workers, and minors. The threshold does not apply to staffing company employees unless the employer employs those staffing employees directly.
To whom does the ETS not apply?
- Employers or federal contractors covered by the Safer Federal Workforce Task Force Guidance
- Healthcare employers subject to the existing Healthcare ETS
If I have 100 employees, what do I need to do now?
- The ETS requires all employers with 100 or more employees to implement a mandatory vaccination policy. The policy must require vaccination of all employees, including new employees. The policy must also include a process for accommodations for employees that cannot get the vaccine due to medical or religious exemptions. The policy must state that employees are subject to mandatory vaccinations or weekly testing or equivalent safeguarding such as 100% remote work. It is recommended that employers consider training employees on the vaccine policy and other related protocols.
When do I need my employees to be fully vaccinated or implement a testing protocol?
- The ETS requires all covered employees to either be vaccinated or commence weekly testing by January 4, 2022. The ETS defines “fully vaccinated” to mean two weeks after an individual’s second dose in a two-dose series, such as Pfizer or Moderna’s, or two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine. This also includes vaccinations approved by the U.S. Food and Drug Administration (FDA) and World Health Organization (WHO). Employers should take care to familiarize themselves with vaccines approved for use internationally and as a combination series. The deadline to comply with all other provisions under the ETS is 30 days from its November 5, 2021 publication in the Federal Register (i.e., on or about December 5).
What are the ETS requirements for employers?
- Regardless of whether a vaccination policy or testing policy is designated, employers must determine vaccination status of all employees, acquire acceptable proof of vaccination status from vaccinated employees (vaccine record from pharmacy or other healthcare provider, a copy of the COVID-19 vaccination card issued by the CDC, medical records or signed attestation), and maintain records of all employees’ vaccination status.
- Employers must require employees to provide prompt notice when they receive a positive COVID-19 test or a COVID-19 diagnosis. Employers must then remove that employee from the workplace, regardless of vaccination status; employers must not allow them to return to the workplace until they meet required standards.
- Employers must ensure that all employees who are not fully vaccinated are tested for COVID-19 at least once a week (if the worker is in the workplace at least once a week) or within seven (7) days before returning to work if the worker is away from the workplace for a week or longer.
- Employers must ensure that, in most circumstances, all employees who are not fully vaccinated wear a face covering when indoors or when occupying a vehicle with another person, for work purposes.
- Employees may be entitled to reasonable accommodation from vaccination, testing, and face-covering in event that the vaccination or testing is utilized.
What happens in the case of a positive COVID-19 test?
- Require employees who test positive for COVID-19 to notify the employer of a positive test result;
- Immediately remove COVID-19 positive employees from the workplace until they receive a negative test result, meet the CDC return-to-work requirements, or are advised by a healthcare provider that they may return to work. While employers are not required to provide paid leave under the OSHA regulation, they may be required to do so pursuant to state or local laws or negotiated labor agreements. If unvaccinated employees test positive for COVID-19, those employees are exempt from the testing requirement for 90 days following the date of their positive test/diagnosis.
What about conflicting state law?
- Approximately one-half of the states have OSHA-approved State Plan. These states must develop their own plans within 30 days of the effective date of the ETS. These plans must be “at least as effective as” the standard set by OSHA. In those states, the ETS will not immediately apply as they will be governed by the regulations developed by the state.
- To date, 22 states have OSHA-approved State Plans regulating private-sector employers.
12) New Mexico
13) North Carolina
15) Puerto Rico
16) South Carolina
- Note, that some states have passed laws prohibiting or limiting employers’ ability to mandate COVID-19 vaccinations. OSHA’s position is that the ETS preempts any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.
If you have questions about compliance requirements under the OSHA ETS or questions regarding inspections and citations, please reach out to T.H. Lyda, Chair of the Occupational Safety and Health practice group.