OSHA’s Emergency Temporary Standard on Vaccine and Testing Mandates

On November 4, 2021, OSHA published its Vaccine Emergency Temporary Standard (ETS). The ETS obligates private employers with 100 or more employees to require vaccination or weekly testing and masking for their unvaccinated employees. Legal challenges have been made with more pending, but until those are resolved, employers should prepare for this mandate. All requirements of the ETS, other than testing, are effective 30 days after publication of the ETS in the federal register. Testing is effective 60 days after publication.

The ETS applies to employers with 100 or more employees at any time while this ETS is in effect. When counting employees, full and part-time employees are counted, as are employees who work remotely.

Timeline:

December 5, 2021 – Employers must have a mask mandate policy for unvaccinated employees and all unvaccinated employees must begin wearing masks unless they work remotely or exclusively outdoors;
December 5, 2021 – Employers must allow up to 4 hours of paid time off for employees to get their vaccine plus paid sick leave to recover from any vaccine side effects;
January 4, 2021 – Deadline for employees to complete the vaccine process or begin weekly testing;
January 4, 2021 – COVID-19 testing requirement begins.

Highlights:

The federal contractor vaccine mandate which was originally slated to begin on December 8^th has been extended to January 4, 2022;
Private employers with 100 or more employees (full and part-time, including employees that work remotely) are required to mandate that their employees be vaccinated fully by January 4, 2022 or submit to weekly testing (although the count to determine employer size includes employees working remotely, the vaccine and testing requirement excludes employees working remote from home, employees who do not report to the workplace and do not see customers or other workers and employees working exclusively outside);
Fully vaccinated means a complete course of dosage – 2 Pfizer, 2 Moderna, 1 J&J by January 4, 2022;
Weekly testing is defined as once per week if in the workplace or within 7 days before returning to work if away for a week or longer;
A valid test is one approved by the FDA and cannot be self-administered and self-read unless proctored by the employer or a telehealth provider;
Employees must provide documentation of the most recent COVID-19 test result to the employer no later than the 7^th day following the date on which the employee last provided a test result;
Weekly testing is not required to be paid by the employer (unless under collective bargaining or other agreement);
Employees not vaccinated must be required to wear a mask no later than by December 5^th, this includes at any work related function such as when traveling in a car together for work purposes.

Employer Administrative Responsibilities:

Employees must allow up to 4 hours paid time off from work to get the vaccine and sick leave to recover from side effects no later than by December 5^th;
Collect proof of vaccine status (immunization record from a healthcare provider or pharmacy, a copy of the COVID-19 vaccine record card, a copy of medical records documenting the vaccine, any other official documentation that contains the type of vaccine administered);
If an employee is unable to produce acceptable proof of vaccination, employers can accept a signed and dated statement from the employee attesting to their vaccine status and attesting that they lost or are unable to produce proof of vaccine (visit the OSHA ETS website for exact wording needed in this attestation document);
Ensure that employees who have not submitted proof of being fully vaccinated wear a mask indoors or occupying a vehicle with another person for work purposes;
Require employees to provide prompt notice when they receive a positive COVID-19 test result;
Employers must have a written vaccine policy that allows for exemptions for medical contraindications, medically necessary delay and reasonable accommodation for disability or strong religious affiliation;
Employers must keep track of vaccine status, maintain a roster of vaccine status, keep records and follow all HIPAA/PHI guidelines;
Provide employees with information they can understand about the requirements of the ETS and workplace policies and procedures that have been established to implement the ETS;
Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them;
Report work-related COVID-19 in-patient hospitalizations to OSHA within 24 hours of learning about the hospitalization.

Resources:

The OSHA website dedicated to the ETS contains a lot of helpful information for employers, including sample policies for the vaccine mandate and testing. Additionally, there is an informative webinar link and employee facing materials. These resources can be found here.