UPDATE: The Fifth Circuit Court of Appeals has reaffirmed the temporary stay previously issued on November 6, 2021, now permanently blocking OSHA from implementing and enforcing its COVID-19 ETS until further order of the court. See statement from OSHA suspending implementation of ETS >
On Thursday, November 4, 2021, the Department of Labor’s Occupational Health and Safety Administration (“OSHA”) released its long-awaited Emergency Temporary Standard (ETS) requiring vaccination or masking and weekly testing protocols for employers with 100 or more employees. Key provisions for employers include:
- Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. Employers must produce a copy of such policy upon request by OSHA.
- The ETS requirements do not apply to employees who work remotely 100% of the time or exclusively outside.
- All covered employers must ensure that their employees are fully vaccinated by January 4, 2022. Following January 4, 2022, unvaccinated employees must produce a verified negative test to their employer on at least a weekly basis. Failure to produce a negative test result requires an employer to prohibit an employee from entering the workplace until a negative result is received. Acceptable SARSCoV-2 tests include those that are:
- Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the FDA to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
- Administered in accordance with the authorized instructions; and
- Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
- Unvaccinated employees must wear a mask at all times, effective December 5, 2021.
- Employers are not required to pay for employee testing under the ETS, but may be required under state law or pursuant to collective bargaining agreements.
- Any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider must be removed from the workplace and not permitted to return until they are cleared. Infected employees must not be required to submit to COVID-19 testing for a period of ninety days following infection.
- The ETS does not require employers to provide paid time off to any employee for removal from the workplace as a result of a positive COVID-19 test or diagnosis of COVID-19; however paid time off may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
- All covered employers are required to provide paid time for their employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working. This requirement is effective December 5, 2021.
- Employers must maintain records of each COVID-19 test result and each employee’s vaccination status. This information must be kept as a confidential medical record.
- Employees are required to report a positive COVID-19 diagnosis regardless of vaccination status.
- Any work-related COVID-19 fatality must be reported to OSHA within eight hours of the employer learning of the fatality.
- Employers are required to provide information to employees on the following topics: • Requirements of the ETS and the policies and procedures the employer has implemented to comply with same; • CDC’s document, “Key Things to Know About COVID-19 Vaccines,”; • Requirements of 29 CFR 1904.35(b)(1)(iv) and section 11(c) of the OSH Act and how those provisions work together to protect employees from retaliation for engaging in OSHA protected activities; and • The importance of providing truthful information about vaccine status and test results including an explanation of the criminal consequences which may exist under OSHA or other federal law for falsifying information.
For detailed FAQs, please see OSHA’s “COVID-19 Vaccination and Testing ETS Frequently Asked Questions” >
For a Fact sheet, please see “Workers’ Rights under the COVID-19 Vaccination and Testing ETS” >
For a list of effective dates, see below chart from OSHA:
What are the effective date and the compliance dates?
The effective date for the ETS is November 5, 2021, which is the date the ETS was published in the Federal Register. Although the ETS becomes effective immediately, employers are not required to comply with the requirements of the ETS until the compliance dates, as follows:
| Requirement | December 6, 2021 | January 4, 2022 |
|---|---|---|
Establish policy on vaccination (paragraph (d)) | X | |
Determine vaccination status of each employee, obtain acceptable proof of vaccination, maintain records and roster of vaccination status (paragraph (e)) | X | |
Provide support for employee vaccination (paragraph (f)) | X | |
Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis (paragraph (h)) | X | |
Remove any employee who received positive COVID-19 test or COVID-19 diagnosis (paragraph (h)) | X | |
Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes (paragraph (i)) | X | |
Provide each employee information about the ETS; workplace policies and procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation (paragraph (j)) | X | |
Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours (paragraph (k)) | X | |
Make certain records available (paragraph (l)) | X | |
Ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer) (paragraph (g)) | X |
Stay tuned for more updates on this issue from the Checkwriters Compliance Team.
Disclaimer:The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.