On November 4, 2021, the Occupational Safety and Health Administration’s (OSHA) long awaited emergency temporary standards (ETS), effective November 5, 2021, were announced establishing requirements for employers with 100 or more employees company-wide to enforce regarding vaccination, masking, and testing for COVID-19. The ETS require large employers to either mandate vaccines for all employees or institute weekly testing for unvaccinated employees.
NOTE — On November 6, 2021, the Fifth Circuit temporarily suspended the ETS in response to a petition seeking a permanent injunction filed in Louisiana by the attorneys general of Louisiana, Mississippi, South Caroline, Texas, Utah, and several private companies. The matter is now pending before the Sixth Circuit where all pending challenges to the regulations will be decided.
Specifically, the ETS has eight (8) main components requiring large employers to:
- institute and enforce a mandatory COVID-19 vaccination policy;
- determine vaccination status of each employee;
- provide up to four (4) hours of paid time off for employees to receive the vaccine (booster not included);
- provide reasonable paid sick leave (up to two days) for employees to recover from vaccine side-effects;
- ensure unvaccinated employees present in the workplace at least once a week are tested weekly for COVID-19;
- provide employees an informational pamphlet regarding the ETS requirements and workplace policies and procedures implementing the ETS;
- report work-related COVID-19 deaths within 8 hours and hospitalizations within 24 hours of learning about either; and
- allow employees to review and copy records.
Effective Date and Deadlines
Although the ETS is effective November 5, 2021, employers with 100 or more employees company-wide have 30 days to:
- establish a vaccination policy;
- determinate the vaccination status of employees;
- obtain proof of vaccination from employees;
- ensure unvaccinated employees wear face coverings indoors at work or in vehicles with others;
- provide information about the ETS to employees; and
- report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours.
Employers have 60 days, up to January 4, 2022, to comply with the testing requirements of the ETS.
OSHA anticipates the ETS will remain in effect for six (6) months, through May 5, 2022, but continues to monitor the COVID-19 trends and will make changes as necessary.
Mandatory Vaccination Policy Requirements
Large employers are required to draft, implement, and enforce a mandatory vaccination policy requiring employees to be fully vaccinated or require unvaccinated employees to be tested on a weekly basis, as explained further below.
Mandatory vaccination policies should exclude employees from receiving an approved COVID-19 vaccine if: (1) they have a medical necessity requiring them to delay receiving a vaccination or (2) they are legally entitled to a reasonable accommodation due to a disability or sincerely held religious belief, practice, or observance that conflicts with the vaccination requirement.
Employees are considered “fully vaccinated” two (2) weeks after completing an FDA approved or authorized one or two shot vaccine. Employees receiving vaccines in other countries on the World Health Organization (WHO) authorized list or administered as part of a U.S. clinical trial may also be considered fully vaccinated. Unless an employee meets the definition of fully vaccinated, they must be treated as unvaccinated, even if the employee previously had COVID-19.
Determination of Vaccination Status
Employers must obtain and retain a physical or digital copy of employee vaccination records, excluding boosters, from the following list of documents deemed acceptable as 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).
Employees who cannot locate their vaccination records should be directed to contact their vaccination providers to request a new copy, or alternatively, their state’s health department’s immunization information system. As a last resort, employees may provide signed statements attesting to their vaccination status (fully vaccinated or partially vaccinated), and that they have lost or are otherwise unable to provide the required proof. The statement should include the following declaration: “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.”
Statements should also include, to the best of employee’s recollection:
- the types of vaccine administered;
- date(s) of administration; and
- the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
All records collected from employees and records tracking such information are considered to be employee medical records, must be maintained consistent with federal and state law and should not be disclosed except as required or authorized by the ETS or other federal law or state law, including the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq.
Mandatory Time off for Vaccine or Sick Leave and Associated Cost of Vaccine
Employers are required to provide employees up to four hours of paid time at the employee’s regular rate of pay to receive the primary vaccination dose(s) necessary to become “fully vaccinated.” The mandated paid time off must be provided in addition to other leave accrued by the employee, including sick time, vacation, or PTO.
Additionally, up to two days of paid sick leave per vaccine dose (boosters excluded) must also be provided for employees experiencing vaccine side effects.
Under the federal rules employers are not obligated to reimburse employees for transportation costs (e.g. mileage, train/bus fare etc.), however, under California law employers are required to pay such costs.
Testing Requirements for Unvaccinated Employees and Record Keeping Requirements
Unvaccinated employees who physically report to the workplace at least once a week must undergo weekly COVID-19 testing until they become fully vaccinated or until the ETS is no longer in effect. Only COVID-19 tests “cleared, approved, or authorized,” or authorized for Emergency Use Authorization (EUA) by the FDA, and appropriately administered may be used for testing purposes. Self-administered and read tests are insufficient unless the employer or an authorized telehealth proctor observe the test and results.
Unvaccinated employees who visit the workplace less frequently must be tested within seven (7) days prior to entering the workplace and provide proof of the test result to the employer upon returning to the office. Such employees must assure they receive the test in enough time to obtain the results prior to entering the workplace. If an unvaccinated employee fails to obtain the mandated tests in a timely manner, they must be excluded from the workplace until timely results are provided.
Employees diagnosed with or testing positive for COVID-19 may not be required to obtain further testing for 90 days following the date of diagnosis or a positive test result (to avoid false positive results).
Employers must retain a record of test results required to be provided by each employee pursuant to the ETS or obtained during tests conducted by the employer. The records should be kept confidential and treated as an employee medical record. Test results should not be disclosed except as required by the ETS or other federal law while the ETS remains in effect.
Also, although the ETS does not require employers to pay for any costs associated with testing, California law requires employers to absorb the cost of testing as a necessary business expense. California employers may designate a testing or vaccination site or require employee to seek approval in advance to avoid disputes over cost.
Notice Requirements for Positive COVID-19 Test
Employees diagnosed with or testing positive for COVID-19 must notify their employer of the diagnosis or test result as soon as practicable before their scheduled shift or return to work.
Any employee diagnosed with or testing positive for COVID-19, regardless of vaccination status, must immediately leave the workplace, but if appropriate, may work remotely. Employees may return to the workplace when:
- the employee voluntarily re-tests and receives a negative test result;
- the employee meets the return-to-work criteria in outlined in the CDC’s “Isolation Guidance” (for most people that means 10 days have passed since the onset of symptoms, the individual has beenfever-free for at least 24 hours without the use of medication, and there has been improvement of other symptoms); or
- a licensed health care provider recommends the employee return to work.
Employers must record all work-related COVID-19 cases on OSHA Forms 300, 300A, and 301, or on equivalent forms.
As a general rule, employers must provide access to the 300 log to employees, former employees, and their representatives. However, employers must honor employee requests to omit their name from the 300 log.
Unvaccinated employees are required to wear face coverings, which can be manufactured or homemade, when indoors or riding in a vehicle with another person for work purposes, except in limited circumstances. Note, however, California’s rules are more restrictive, requiring unvaccinated employees to wear NIOSH-certified respirator masks.
The only time unvaccinated employees may go without a face covering under the ETS is when:
- they are alone in a room with floor to ceiling walls and a closed door;
- while eating or drinking;
- for identification purposes in compliance with safety and security requirements;
- the employer can show that the use of face coverings is infeasible or creates a greater hazard (e.g., when it is important to see the employee’s mouth for reasons related to their job duties, when the work requires the use of the employee’s uncovered mouth, or when the use of a face covering presents a risk of serious injury or death to the employee).
Vaccinated employees may voluntarily wear face masks unless doing so would create a hazard.
Always check state and local regulations on mask mandates as many jurisdictions require all employees, regardless of vaccination status, to wear face masks in the workplace.
Information Employers Must Provide to Employees about the ETS
Employers must provide a written explanation of the ETS requirements to employees “in a language and at a literacy level” employees will understand including, but not limited to:
- the employer’s policies and procedures implementing the ETS;
- “Key Things to Know About COVID-19 Vaccines;”
- the prohibition on discharging or discriminating against an employee for reporting work-related injuries or illness, or exercising rights under, or as a result of actions that are required by, the ETS; and
- the prohibition against retaliation for filing an OSHA complaint, reporting a work-related injuries or illness, or otherwise exercising any rights under the OSH Act.
Information Employers Must Provide to Employees
Employers must permit employees, or their representative, to review and copy their COVID-19 vaccine documentation and any COVID-19 test results by the end of the next business day after a request.
We have a dedicated team that can answer workplace related COVID-19 questions and assist with drafting policies mandated by the ETS and are monitoring developments in this area as they occur. If you have any questions or need assistance, please contact us.