OSHA has finalized and published the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), effective November 5, 2021. The ETS is expected to be in effect for six months.

State Requirements

OSHA has stated it “intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing. State and local requirements that prohibit employers from implementing employee vaccination mandates, or from requiring face coverings in workplaces, serve as a barrier to OSHA’s implementation of this ETS, and to the protection of America’s workforce from COVID-19.”

The ETS covers states under Federal OSHA authority. States that are authorized to enforce their own occupational health programs, considered “State Plan States”, must adopt the Federal ETS or adopt a state-specific ETS that is at least as effective as the Federal ETS by December 5, 2021.

Employer Obligations

Under the ETS:

  • Employers must determine if they are covered by the ETS, which includes private-sector employers with 100 or more employees, firm or company-wide, on November 5, 2021. Section 2.A. of the Frequently Asked Questions can help with this determination.
    • An employer must come into compliance with the ETS if it did not employ 100 or more employees on November 5, 2011 but meets that threshold while the ETS is in effect.
    • Though they must be counted toward the 100-employee threshold, the provisions for vaccination and testing do not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.
  • Covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy or adopt a policy that requires employees that choose not to be vaccinated to undergo regular COVID-19 testing and wear a face covering while at the workplace.

Compliance dates are as follows:

  • By December 5, 2021, employers must comply with all provisions of the rule other than weekly COVID-19 testing for unvaccinated employees.
  • By January 4, 2022 Employers must comply with the provisions requiring weekly testing for unvaccinated employees.
    • If an employee completes the entire primary vaccination series by January 4, 2022, that employee does not have to be tested even if the employee has not yet completed the two-week waiting period that is required to meet the definition of fully vaccinated.

Key Components of the ETS

Key components of the ETS include:

  • Develop, implement and enforce a mandatory written COVID-19 vaccination policy with an option to allow unvaccinated employees to undergo weekly COVID-19 testing and wear a face covering while at the workplace
    • See OSHA’s templates under Implementation, Policy Templates
    • Employers with existing policies must modify and/or update their current policies to incorporate any missing required elements, and must provide information on these updates or modifications to all employees
    • Employees that have an approved reason for not being vaccinated (e.g., medically contraindicated, medical necessity requiring delay in vaccination, reasonable accommodation under federal civil rights laws because of disability or sincerely-held religious belief) must fall under the COVID-19 test and mask mandate
    • The policy must address new employees – new hires should be treated similarly to any employee who has not entered the workplace in the last seven days and will need to be fully vaccinated or provide proof of a negative COVID-19 test within the last seven days prior to entering the workplace for the first time
  • Determine of employee vaccination status of each employee
    • Obtain acceptable proof of each employee’s vaccination (employees that cannot provide acceptable proof must be considered to be unvaccinated)
    • Maintain records of each employee’s vaccination status
    • Maintain a roster of each employee’s vaccination status
  • Support employee vaccination by providing reasonable paid time off to obtain vaccination and for sick leave to recover from vaccination side effects
  • Require unvaccinated employees to obtain an approved COVID-19 test every 7 days (if in the workplace at least once per week) or within 7 days if returning to work (if away from workplace for a week or longer)
    • Test must be FDA-approved and cannot be self-administered and self-read
    • Employee must not be allowed on-site until acceptable test result is provided
  • Require employees to report a positive COVID-19 test result or diagnosis by a licensed health care provider, remove employee from workplace, and keep out of the workplace until meeting acceptable criteria for return to work
  • Require each unvaccinated employee to wear a face covering while at work or when occupying a vehicle with another person for work purposes
    • Face coverings must meet ETS definition of approved face covering
    • Not required when alone in a fully enclosed room with door closed
    • Not required for short periods when eating or drinking or for safety and security identification
    • Not required when wearing respirators or facemasks
    • Not required where infeasible or creates greater hazard
  • Provide required information to all employees related to ETS and subsequent workplace policies, CDC document on vaccines, information on protections against retaliation and discrimination, and information about laws related to supplying false information
    • Updates must be provided to all employees when policies and/or procedures change
  • Maintain all required records
    • Must be maintained as an employee confidential medical record, but only for the term of the ETS or subsequent final standard
  • Report work-related COV ID-19 fatalities and in-patient hospitalizations to OSHA
    • If an employee is hospitalized or dies from workplace COVID-19 exposure at any time after that exposure, it must be reported.

OSHA has published guidance on implementation of the rule, including a webinar and frequently asked questions.

Proposed Final Rule

The ETS also serves as a proposal for normal rulemaking for a final standard. OSHA is accepting comments on the ETS and whether it should be adopted as a final standard. If not adopted as a final standard, the ETS will continue to be effective until withdrawn by OSHA. Stakeholders may submit comments and attachments, identified by Docket No. OSHA-2021-0007, electronically at www.regulations.gov.

Contact VBA Compliance Assurance if you need assistance with OSHA regulatory compliance.