OSHA Issues Covid-19 Vaccination and Testing ETS

Compliance | Nov 8, 2021
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Update (01/13/2022) - The U.S. Supreme Court blocked OSHA's vaccination and testing mandate for employers with 100 or more employees.

Update (12/20/2021) - The 6th U.S. Circuit Court of Appeals has lifted the stay on OSHA's Vaccination and Testing Emergency Temporary Standard. Several groups have petitioned the Supreme Court to overturn this ruling.

In response to the 6th U.S. Circuit Court of Appeals ruling, the Department of Labor released a statement saying that OSHA will not issue any citations on any of the ETS requirements before January 10 nor issue any citations regarding noncompliance with the testing requirements before February 9 as long as an employer is "exercising reasonable, good faith efforts to come into compliance with the standard."

Update (11/17/2021) - The U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard. In response, OSHA has suspended the implementation and enforcement of the ETS pending the outcome of future litigation.

After President Joe Biden announced a vaccine mandate initiative, the Occupational Safety and Health Administration (OSHA) has released their Emergency Temporary Standard (ETS). This ETS mandates vaccinations or weekly testing for workers employed by a company with 100 or more employees.

Employers who fall under the ETS must ensure that their employees have completed their vaccination by January 4, 2022. If an employer does not institute a vaccination mandate, then they must ensure that unvaccinated employees begin weekly Covid-19 testing no later than January 4, 2022.

Here are some other key highlights from the ETS:


Who does the ETS apply to?

Private employers with 100 or more employees must comply with the mandates set forth by the ETS. This count applies company-wide. Also, the threshold makes no distinction between part- and full-time employees.

Which employees are impacted by the ETS?

Even though an employer may fall under the ETS, not all employees necessarily do. The vaccine/testing requirements do not apply to the following employees:

  • Those who do not report to a workplace where other individuals are present;
  • Employees while working from home; and
  • Employees who work exclusively outdoors.

However, be aware that the ETS does have some exceptions. For example, if an employee works exclusively outdoors, but travels to the job site with other employees (such as in a company vehicle), then the vaccination/testing requirements do apply.

What must an employer do?

The primary initiative is that an employer must develop and enforce a mandatory Covid-19 vaccination policy.

There is a testing alternative. However, it is up to the employer if they want to offer that choice. If so, an employer must establish and implement a policy that allows employees to opt for weekly Covid-19 testing. Employees that opt for testing must also wear a face covering while at the workplace.

An employer must also:

  • Determine the vaccination status of each employee by obtaining an acceptable proof of vaccination.
  • Provide a reasonable amount of time - including up to four hours of paid time - for an employee to receive a vaccination dose.
  • In addition, provide reasonable time and paid sick leave for an employee to recover from any possible side effects following each vaccination dose.
  • Immediately remove any employee from the workplace, regardless of vaccination status, who received a positive Covid-19 test or is diagnosed with Covid-19 by a licensed healthcare provider.
  • Inform employees about the ETS in a language and literacy level the employee can understand. This includes information about the benefits of being vaccinated (use the CDC's Key Things to Know About COVID-19 Vaccines).
  • Report any work-related Covid-19 fatalities to OSHA within eight hours of learning about them. Also, report any work-related Covid-19 in-patient hospitalizations within 24 hours of learning about them.
  • Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.

The ETS also requires employees to provide prompt notice when they receive a positive Covid-19 test or are diagnosed with Covid-19.


How does the ETS apply to a company with a variable employee count?

If at any point during the duration of the ETS an employer has 100 or more employees, the ETS applies.

Once an employer falls under the ETS mandates, the standard continues to apply while it is in effect. For example, if an employer has over 100 employees on or after the ETS goes into effect, but then their employee count drops below the threshold (to say 94 employees), the ETS still applies.


What is considered acceptable proof of vaccination?

The following documents are considered acceptable proof of vaccination:

  • Record of immunization from a health care provider or pharmacy;
  • U.S. COVID-19 Vaccination Record Card;
  • Medical records documenting the vaccination;
  • Immunization records from a public health, state, or tribal immunization information system; or
  • 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).

As a part of the ETS requirements, an employer must maintain an employee's vaccination information. As such, an employee merely showing their vaccination documentation to an employer representative is not sufficient.


What if an employee has lost their vaccination card?

If an employee has lost their vaccination record, they should attempt to get a copy from either their vaccine administrator or from their state’s health department. If they are unable to do so, then an employee can use a signed and dated statement that details the following information:

  • Attests to their vaccination status (either fully or partially vaccinated);
  • Attests that they have lost or otherwise unable to produce proof required by the ETS;
  • And includes the following language: “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.”

In addition, an employee should include the following information to the best of their recollection: the type of vaccine administered; the date(s) of administration; and the name of a healthcare provider or site administering the vaccine.


How does the ETS handle booster shots?

Under the ETS, any booster or additional doses that an employee is eligible to receive is not included in the definition of “fully vaccinated.” As such, employers are not required to obtain vaccination information beyond what is required for a person to be considered fully vaccinated.


For More Information

This article only covers some key components of the ETS. OSHA has a collection of resources available that further explain different aspects of it. Be sure to review them closely and consult with your legal counsel as to how this ETS applies to your company.


Disclaimer: This is simply a summary of some parts of the OSHA's Emergency Temporary Standard concerning mandating vaccines and testing. This does not constitute legal advice. Always check with your own legal and/or financial advisors as to how the provisions in this ETS and others may apply to you or your business.