Eight weeks after President Joseph R. Biden’s announcement, the federal Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) requiring all employers with at least 100 employees to ensure their workers are fully vaccinated against COVID-19 or submit to weekly COVID-19 testing. Coming on the heels of the vaccine mandate for federal employees and contractors, this ETS—which affects over 80 million private-sector workers—constitutes one of the most forceful steps yet taken by the federal government to help end the COVID-19 pandemic.  The ETS was released concurrently with vaccine mandates by the Centers for Medicare & Medicaid Services.

The ETS provides covered employers with two pathways for compliance: (1) Require that all employees be vaccinated unless the employee qualifies for a medical or religious exemption (exempt employees must participate in at least once-weekly testing and wear face coverings); or (2) Provide employees with the option/choice of either showing proof of vaccination status or participating in at least once-weekly testing.

What does 100 employees mean?

The ETS covers employers with 100 or more employees company-wide, and includes temporary workers, seasonal workers, and minors.  An employer does not, however, need to calculate the 100-or-more-employee threshold based on all employees in a multi-employer worksite.  Nor does the 100-or-more-employee minimum apply to staffing company employees unless the employer also employs those staffing company employees directly.  In addition, the ETS does not cover employers subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or healthcare employers that participate in Medicare and Medicaid programs.   

I have 100 employees; What do I need to do now?

The ETS requires all employers that have 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. Employers should 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 after its anticipated November 5, 2021 publication in the Federal Register (i.e., on or about December 5). 

What documentation do I need to prove vaccine status of my employees?

The ETS requires employers to obtain proof of vaccination through the following means:

• record of immunization from a healthcare provider or pharmacy;
• a copy of the 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 verifying vaccination with information on the vaccine name, date(s) of administration, and the name of healthcare professional or clinic site administering the vaccine.

An attestation may be acceptable if the employee is unable to produce acceptable proof of vaccination and if the employee signs and dates a statement (a) attesting to their vaccination status; (b) stipulating that they have lost or are otherwise unable to provide proof; and (c) acknowledging that providing false information regarding vaccination status may subject the employee to criminal penalties. Employers that have previously collected attestations prior to the effective date do not need to re-verify or collect these attestations.   

Employers should maintain all proof of vaccination while the ETS is in effect.  In somewhat of a relief, employers do not need to maintain this documentation for 30 years, as is typically required under OSHA regulations.  The documentation should be confidential and maintained separately from employees’ personnel files.

Upon request, employers must make available to employees their respective COVID-19 vaccination documentation and any COVID-19 test results by the end of the next business day. Further, an employee or an employee representative is entitled to information related to data regarding the vaccination status of the entire workplace. Employers must provide copies of their mandatory vaccination policy within four business hours of a request from the assistant secretary of OSHA. All other documentation required by the ETS and requested by the assistant secretary must be provided by the next business day.

How will a testing program work?

Any employee who is not fully vaccinated and reports to a workplace must submit to a COVID-19 weekly testing protocol.  The employee must take and provide proof of a negative test at least once every seven days.  If an employee frequents the office less often than every seven days, the employee must be tested for COVID-19 within seven days prior to returning to the workplace and must provide proof of negative test upon return to the workplace. 

Acceptable COVID-19 tests are tests that are cleared, approved or authorized (including Emergency Use Authorization) by the FDA and that are administered in accordance with authorized instructions.  Employers must ensure that the test is not both self-administered and self-read, unless observed by the employer or other authorized telehealth proctor. 

Employers are required to remove immediately any COVID-19 positive employees from the workplace. In order to meet the criteria to return to work, employees must receive a negative result on a COVID-19 nucleic acid amplification test (NAAT), meet the return-to-work criteria as established in the CDC’s “Isolation Guidance,” or receive a recommendation to return to work from a licensed healthcare provider.  Employers are not required to provide paid leave during the removal periods. Employers should be aware of various state and local wage and hour obligations as well as local COVID-19 supplemental paid sick leave laws that remain in effect.

Employers must maintain all testing records while the ETS is in effect.  As with vaccination records, employers do not need to maintain this documentation for 30 years. The documentation should be confidential and maintained separately from employees’ personnel files.

Do employers need to require face coverings or masks in the workplace?

Covered employers must ensure all unvaccinated employees wear a face covering while indoors or when occupying a vehicle with another person for work purposes, with limited exceptions. 

If an employee cannot wear a face covering because of a disability or a sincerely held religious belief, the employee may be entitled to a reasonable accommodation.  The ETS refers to the Equal Employment Opportunity Commission’s guidance for determining when reasonable accommodations may be needed due to a disability or sincerely held religious belief.

Do employers have to pay for leave to obtain the vaccine and for side effects?

The ETS requires covered employers—regardless of whether they implement a mandatory vaccine policy or the alternative testing approach—to provide up to four hours of paid time to receive each primary dose (excluding any booster doses) of the vaccine, and reasonable paid time for sick leave for side effects. The paid leave program must be included in the required policy.

This vaccine time is “protected” so long as it is a “reasonable” amount of time, even where an employee reasonably requires more than four hours of time off from work for a vaccine dose. The ETS notes, “the additional time, as long as it is reasonable, would be considered unpaid but protected leave . . . . the employer cannot terminate the employee if they use a reasonable amount of time to receive their primary vaccination doses.”

The vaccine-time pay requirement is pay for time off work; the requirement applies only to covered employees who get vaccinated during working hours. The ETS notes that “OSHA expects that most employees will need less than four hours to receive a vaccination dose,” and offers that employers that establish on-site vaccine clinics—though still obligated to provide paid time for vaccination—likely will need to provide less time for employees utilizing an on-site option.

Concurrent Time Off? The ETS provides that the necessary paid time off for side effects may run concurrently with existing sick time (or generic “PTO” time typically used to cover absences due to illness). OSHA instructs, however, that employers may not require employees to use stand-alone vacation pay to cover side effects; instead, additional sick time must be provided. 

How Much Sick Time for Side Effects? The ETS does not require a particular amount of paid sick time for vaccine side effects. It requires only that the amount of time be “reasonable,” and notes that employers may set a reasonable a cap on this time.

Pay for Incidental Vaccine Costs, Testing and Masking Costs: The ETS notes that employers are not obligated to reimburse employees for incidental costs incurred for vaccination (e.g., gas money, public transportation costs), including mileage for travel to vaccine sites. Despite appearing to leave these decisions up to the employer’s discretion, the ETS explicitly acknowledges that payment for testing may be required by other laws, regulations, or collective bargaining agreements. Therefore, employers need to be cautious of the wide array of state and local pay requirements, or requirements set forth under any applicable collective bargaining agreements. Certain states have established laws and regulations requiring reimbursement of business expenses, especially if an employer is requiring testing as a condition of employment.

Do I have to report COVID-19 cases?

Employers must report COVID-19 work-related fatalities within eight hours of learning of the death, or within 24 hours of learning of an employee’s in-patient hospitalization. Employers should be mindful of established OSHA recording requirements for work-related injuries resulting in days away from work, death, medical treatment beyond first aid, or loss of consciousness.

I operate in a state with a state OSHA program; Do I have to comply with the ETS?

Twenty-two states administer their own OSHA programs covering private-sector workers and state and local government workers. The FAQs of the ETS clarify that state OSHA programs must be at least as effective as the OSHA ETS in protecting workers from COVID-19 hazards and that state OSHA programs have 30 days to adopt the ETS or implement a regulation that is at least as effective as the ETS. State plans must notify OSHA of the action they will take within 15 days.

OSHA’s position as discussed in the FAQs is that the new rule preempts any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.

Employers facing the difficult task of deciding how to comply with the broad mandate regarding testing, vaccines, and return to work are encouraged to discuss their options with counsel.