COVID-19 Update: OSHA released new ETS on vaccine mandate for employers of 100 or more employees

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This morning, OSHA released an Emergency Temporary Standard mandating vaccines or testing for employers of 100 or more employees (part-time employees are included). Covered employers are required to “develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.” There will be lots of analysis of this new standard in the coming days which we will share, but we wanted to provide the following highlights to you immediately.

Effective Date

The ETS is in effect as of publication in the Federal Register (11/5/21) and employers have 30 days— January 4, 2022– to comply with all requirements other than testing for employees who have not completed their primary vaccination dose. Within 60 days, employers must be in compliance with testing requirements for employees who have received all doses required for a primary vaccination.

Requirements– highlights

  • Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status;
  • Employers must cover the cost of providing up to 4 hours of paid time to receive each dose, and reasonable time and paid sick leave to recover from any side effects following each dose;
  • Employees may be entitled to reasonable accommodations, absent undue hardship to the employer, due to a medical condition or sincerely held religious belief;
  • Employers must require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis, and remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria;
  • Employers must ensure that each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer);
  • Employers are not required to pay for testing or face coverings for employees who opt to remain unvaccinated;
  • Employers must ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Permissible COVID-19 tests include

  1. 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);
  2. administered in accordance with the authorized instructions; and
  3. not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
  4. Antibody tests are not permissible

Exemption in the event of limited testing/lab capacity

While OSHA believes that there are sufficient COVID-19 tests and lab capacity available to meet the increasing demand for testing due to the standard, in the event an employer has difficulty accessing testing due to limited supply, OSHA has indicated that they will consider an employer’s good faith efforts to comply before moving forward with enforcement actions.
Please take some time to review the OSHA ETS FAQs which include additional clarity on a range of questions including what is required in employer plans, what documentation qualifies as acceptable proof of vaccination, requirements for leave in connection with a vaccine, and more.
OSHA has also provided a webinar on the new standard that you may find helpful.