What Employers Need to Know About OSHA's New Vaccine and Testing Requirements

In September, the Biden administration announced its plan to address the ongoing COVID-19 pandemic, which included directing the U.S. Occupational Safety and Health Administration (OSHA) to develop and implement a new emergency temporary standard. Yesterday OSHA issued its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which will be published in the Federal Register today, Nov. 5, 2021.
 
Below is a high-level summary of the key points of the ETS.
 
Quick-Reference Section Shortcuts:

Timing
Covered Employers
Testing and Vaccinations
Policy and Information Requirements
Tracking and Recordkeeping Requirements
Next Steps for Employers

Timing

What is the effective date of the ETS?
The ETS is effective as of Nov. 5, 2021, the date of publication in the Federal Register. However, covered employers have until Dec. 5, 2021, to establish their policy on vaccination, determine employee vaccination status, and comply with the ETS’s paid time off and masking requirements for unvaccinated employees. The weekly testing requirement for unvaccinated employees goes into effect on Jan. 4, 2022.
 
What about employers in states with state OSHA plans?
In states that administer their own OSHA programs, such as Minnesota, the state OSHA program must adopt a standard that is “at least as effective” as the federal OSHA ETS. State OSHA programs will have 30 days to adopt the federal OSHA ETS or implement their own equally effective regulations and must notify OSHA of the action they will take within 15 days.      
 
What is the duration of the ETS?
OSHA has indicated that the ETS will likely be in place for six months. However, OSHA will continue to monitor trends in COVID-19 infection and death rates and may amend the ETS as necessary.
 
Covered Employers

How is the 100-employee threshold calculated for purposes of the ETS?
 The 100-employee count needs to be done on an enterprise level, not per location or worksite. This means that any employer with more than 100 employees is covered, even if it has less than 100 employees at any one location.
 
What types of employees are counted to determine if the 100 employee threshold is met?
Full-time and part-time employees are included, as are temporary or seasonal employees that are employed directly by the employer. Independent contractors are not included.
 
How are employees from staffing agencies counted?
When employees of a staffing agency are placed at a host employer location, only the staffing agency counts the staffing agency’s employees for purposes of the 100-employee threshold.  
 
Do remote employees count toward the 100-employee threshold?
Yes, all remote employees count toward the 100-employee threshold. However, the ETS’s requirements only apply to employees who work in an office or other setting around other individuals, and not to employees working exclusively from remote locations.
 
Do fully vaccinated employees count for purposes of determining the 100-employee threshold?
Yes. All employees, regardless of vaccination status or location, must be considered for purposes of determining the 100-employee threshold.
 
Testing and Vaccinations 

What type of testing will be permitted?
Under the ETS, a “COVID-19 test” must be a test for SARS-CoV-2 that is:

• cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
• administered in accordance with the authorized instructions; and
• neither self-administered nor self-read unless observed by the employer or an authorized telehealth proctor.

This includes the nucleic acid amplification tests (NAATs) and some antigen tests.
 
Are employers required to pay for costs associated with COVID-19 testing?
The ETS does not require employers to pay for any costs associated with testing. However, state law or collective bargaining agreements may require an employer to do so, making it particularly important for employers to consult with legal counsel when considering who will pay for testing. Nothing in ETS prevents an employer from paying the costs of testing.
 
What if tests are not available?
OSHA has determined that testing should be reasonably available. In the event testing is not available, OSHA has indicated it will look at the employer’s good faith efforts to comply with the testing requirements when determining enforcement actions.
 
Will untested and unvaccinated employees be permitted to work?
Untested and unvaccinated employees will generally not be permitted to work. However, if there is a delay in the reporting of testing results and an employer allows an unvaccinated employee to continue working, OSHA will look at the pattern and practice of the employee and the employer’s verification process for enforcement where the facts show good faith efforts to comply.
 
If an unvaccinated employee is unwilling to get tested, should the employer terminate the employee Or will the employer be required to provide the employee leave (paid or unpaid)?
 
Absent a qualifying medical or religious exemption, an employer may have grounds to terminate an employee who refuses both vaccination and testing. Legal counsel should be consulted to address specific situations like this that may arise.   
 
Do employers have to compensate employees for time spent receiving the vaccine or recovering from side effects resulting from the vaccine?

• Receiving the Vaccine. Employers need to provide reasonable paid time off for employees to receive the vaccine. OSHA says that reasonable time is up to four hours of paid time to receive each primary dose of the vaccine. This does not include booster shots and only applies to employees who get vaccinated during their normal working hours. 
• Recovering from the Vaccine. The ETS does not specify the amount of time that must be provided to recover from the vaccine’s side effects. It requires only a “reasonable” amount of time and that employers may establish a cap on this time. If an employee has accrued paid sick leave or PTO available, an employer may require the employee to use that paid leave when recovering from vaccination side effects. However, if an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use accrued sick leave. An employer may not require an employee to use accrued vacation leave, or “borrow” sick time from a future balance to cover the time away when recovering from vaccination side effects.
• Transportation Costs. Employers are not required to reimburse employees for transportation costs related to receiving the vaccine (e.g., gas money, bus or train fare). However, employers should be aware of state or local laws that may require expense reimbursement for costs associated with vaccination. 

How does the ETS address exemptions for medical and religious reasons?
Employees who cannot be vaccinated or undergo weekly testing due to certain medical or religious reasons can request reasonable accommodations. Reasonable accommodation requests should be considered on a case-by-case basis to determine if an accommodation is appropriate.

For more information about evaluating requests for reasonable accommodation, employers may consult the EEOC’s website: "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws."
 
Can an unvaccinated employee who has not received a COVID-19 test still come to work if they wear a mask and isolate while on-site?
No. An unvaccinated employee must provide a negative result of a COVID-19 test before coming back into the office. In addition, unvaccinated employees must also wear a face covering at the workplace.
 
When may an employee who is not fully vaccinated be without a face covering?
The following circumstances permit the employee to not wear a face covering:

• When the employee is alone in a room with floor to ceiling walls and a closed door.
• For a limited time while the employee is drinking or eating at the workplace or for identification purposes
• Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance.

Policy and Information Requirements

What are employers required to provide to employees under the ETS?
The ETS requires covered employers to either implement a mandatory COVID-19 vaccination policy or implement a policy allowing unvaccinated employees to elect to undergo weekly COVID-19 testing and wear a face covering in the workplace.
 
The ETS also requires employers to provide employees: (1) information about the ETS’s requirements, policies and procedures established by the employer to implement the ETS; (2) the CDC document “Key Things to Know About Covid-19 Vaccines”; (3) information about prohibitions against retaliation and discrimination; and (4) information about criminal penalties for knowingly supplying false statements or documentation.
 
Tracking and Recordkeeping Requirements

What are the tracking and recordkeeping requirements?
Employers need to track vaccination status and weekly testing records for all of its employees. The following list includes the acceptable documentation for proof of vaccination:

the record of immunization from a health care provider or pharmacy;

• a copy of the U.S. 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; 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).

What if an employee no longer has a proof of vaccination?
The employee should contact their vaccination provider or their state’s health department’s immunization information system to request a new copy of their vaccine card. If the employee is still unable to produce proof of vaccination, the employee may submit a signed and dated statement that:

• attests to their vaccination status (fully vaccinated or partially vaccinated);
• attests that they have lost or are otherwise unable to produce proof required by this section; and
• includes the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”

Next Steps for Employers

Employers have 30 days to implement the written policy, paid time off, and masking requirements. Employers should begin taking steps to comply with those requirements now. OSHA has provided templates for employers to use, which can be found here under "Implementation."

We Can Help

Maslon’s Labor & Employment Group is ready to help and guide employers as they undertake compliance with the ETS. We will also provide additional information in the coming weeks as we expect further compliance questions to arise from OSHA’s new ETS.
 
Additional Resource: OSHA’s FAQs for the ETS