The Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) mandating that all employers with 100 or more employees must require COVID-19 vaccination or weekly testing by January 4, 2022 and must begin enforcing a mask mandate by December 5, 2021.

The 490-page ETS, issued on November 4, 2021 and summarized below, comprehensively outlines the duties of covered employers, including:

• two options for vaccine policies
• methods for checking vaccination status
• requirements for testing employees who remain unvaccinated
• workplace face-covering rules
• reporting requirements
• paid time off to support employees obtaining a vaccine

Covered employers should act swiftly to establish policies that comply with the requirements of the ETS by its initial effective date of December 5, 2021. The ETS will be published in the Federal Register on November 5, 2021 and will become effective on December 5, 2021. The weekly testing requirements will become effective on January 5, 2022.

As a temporary standard, the ETS expires within six months, or May 5, 2022. Although it is temporary, the ETS may become a permanent rule. The public may provide comments by December 5, 2021 regarding whether the rule should become permanent.

Covered Employers

The ETS applies only to employers with 100 or more employees. The measure of 100 or more employees includes any time while the ETS is in effect. Independent contractors do not count toward the 100-employee count.

Employers are exempt from coverage of the ETS if they are covered by the separate ETS issued by OSHA regarding healthcare employers or if they are federal contractors covered by the White House Safer Federal Workforce COVID-19 Federal Contractor Mandate.

Covered Employees

All employees of a covered employer are subject to the ETS’s requirements, unless:

• the employee does not report to a workplace where any other individuals are present
• the employee works exclusively from home
• the employee works exclusively outdoors

Employees who work from home on a partial basis are not excluded from coverage of the ETS.

Vaccination Policy

The ETS offers covered employers two options for establishing a vaccination policy:

Option One
Covered employers may implement and enforce a policy that requires covered employees to be fully vaccinated.

Option Two
As an alternative, covered employers may implement and enforce a policy that allows employees a choice between vaccination or weekly testing and wearing of a face covering in the workplace.

As noted above, the testing and masking requirement contained in option two is not required until January 5, 2021. The vaccination requirement must be implemented and enforced by December 5, 2021.

Employees can be excluded from the vaccination requirement due to medical reasons or on account of a disability or a sincerely held religious belief, practice or observance that conflicts with the vaccination requirement. Employees who qualify for disability or religious exemptions may be entitled to a reasonable accommodation. The exemptions and requirements for reasonable accommodations may also apply to the face covering requirement.

Checking Vaccination Status

Covered employers must determine covered employees’ vaccination status and maintain vaccination records. Acceptable records include:

• A copy of the CDC COVID-19 vaccination card;
• A copy of medical records indicating vaccination;
• A copy of vaccination records issued by a public health authority; or
• Other “official documents” that indicate the date, place, and health care provider who administered the vaccine.

In lieu of one of these documents, an employee may submit a statement that attests to vaccination status, the fact that the proof of vaccination has been lost, and following specific language from the ETS: “I declare 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.”

In addition to maintaining records of vaccination status, covered employers must also keep a roster of employees with each employee’s vaccination status. All vaccine-related records must be kept confidential.

Requirement to Support Vaccination

Covered employers are required to take the following actions to support vaccination:

• Provide up to four hours of paid time at the employee’s regular rate of pay to receive the vaccine, including travel time to and from the vaccination site.
• Provide reasonable paid sick time to employees so that they can recover from side effects from the vaccine.

Testing Requirements for Unvaccinated Employees

Employees who are not vaccinated must be tested for COVID-19 at least once every seven days. If an employee does not report to a workplace during any seven-day period, the employee must be tested for COVID-19 within seven days before returning to the workplace. Employers do not have to pay for the costs of testing, unless payment is required by another federal, state, or local law, or collective bargaining agreement.

Over-the-counter “rapid” tests may be used, but covered employers cannot allow employees to perform the test and read the results on their own. Either an employer representative or an authorized telehealth provider must observe the testing process.

Employers must maintain records of every test result provided by employees. Like vaccination records, the test results are considered confidential employee medical records.

If any employee refuses to be tested or submit a test result, a covered employer must exclude the employee from the workplace until a negative test result is provided by the employee.

Face Covering Obligations

Employees who are not vaccinated must also wear a face covering when in an indoor workplace (including a vehicle with another individual). Exceptions to this requirement include:

• When an employee is alone in room that is completely enclosed
• When an employee is eating or drinking at the workplace, for a limited period of time
• If removing the face covering is necessary for identification purposes
• Where the face covering is not feasible due to working conditions or would create a greater hazard than wearing a face covering

The ETS specifically provides that an employee can choose to wear a respirator instead of a face covering and that employers cannot prohibit an employer from wearing a respirator. Employers do not need to pay for employees’ face coverings or respirators.

Employees’ Duty to Notify Employers of Positive Test Results

The ETS imposes a requirement on employees to immediately notify the employer of a positive COVID-19 test result or diagnosis of COVID-19. This duty applies to vaccinated and unvaccinated employees. The employer must remove the employee from the workplace until the employee tests negative for COVID-19 and follows CDC isolation guidance in effect at the time.

If an employee is excluded from the workplace due to a positive COVID-19 test result or diagnosis, the ETS does not provide for paid leave. Paid leave may be required by applicable law, collective bargaining agreement, or employer policy.

Employers’ Duty to Report Fatalities and Hospitalizations to OSHA

The ETS requires employers to report COVID-19 fatalities and hospitalizations that are work-related to OSHA. Fatalities must be reported within 8 hours and hospitalizations must be reported within 24 hours.

Employers’ Duty to Provide Records and Information to Employees and OSHA

If requested by employees or by their representatives authorized in writing, employers are required by the ETS to provide by the next business day the following information or documents:

• An employee’s vaccination documentation or test result for the employee making the request or his/her authorized representative
• The aggregate number of fully vaccinated employees at a workplace and the total number of employees at the workplace.

In addition, employers must provide to OSHA their written policies regarding vaccination and testing/masking, as well as the aggregate number of fully vaccinated employees within four business hours of the request. Employers must provide other records to OSHA that they are required by the ETS to maintain by the next business day.

Information and Posting Requirements

To inform employees of the ETS’s requirements, vaccinations, and the legal protections of the OSH Act, covered employers must inform employees of:

• The requirements contained in the ETS
• The employer’s policies established to implement the ETS
• The benefits of vaccination, specifically through providing a CDC document entitled Key Things to Know About COVID-19 Vaccines
• The protections for employees of the OSH Act and OSHA regulations, including 29 CFR 1904.35(b)(1)(iv) and Section 11(c) of the OSH Act, which describe employee rights and prohibit employer retaliation
• The prohibitions of federal law, including Section 17(g) of the OSH Act, which deal with criminal penalties for giving false statements

Legal Preemption and State Plans

The ETS preempts contrary state or local law that provide for inconsistent standards or prohibit mandatory vaccination if the state or local law is less restrictive.

The ETS does not necessarily preempt or overcome federal labor law, meaning that the requirements of the ETS may be subject to bargaining with unions.

In addition, some states have “state plans” authorized by OSHA. Those states are free to adopt different requirements, as long as they are “as effective” as the requirements set forth in the ETS.

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