OSHA COVID-19 Vaccination & Testing Emergency Temporary Standard

On November 5, 2021, OSHA published the COVID-19 Vaccination and Testing; Emergency Temporary Standard (ETS) that applies to employers with at least 100 employees. The ETS serves as a proposal for a final standard, meaning it may become a permanent set of requirements after a comment period and final rulemaking. Although the ETS is currently facing legal challenges, it was meant to take effect immediately with compliance deadlines of December 5, 2021, to meet most of the Standard’s requirements and January 4, 2022, to begin weekly COVID-19 testing of any employees who remain unvaccinated. Due to the short timeframe, employment lawyers recommend preparing to comply with the requirements.

IMPORTANT NOTE

Healthcare facilities that are already subject to the Healthcare ETS that was issued in June 2021, will not be subject to the new vaccination and testing ETS as long as the Healthcare ETS remains in effect. However, if at any time while the new ETS is in effect, the Healthcare ETS expires (as is expected on December 21, 2021, six months from its effective date), then the employer may become subject to the vaccination and testing ETS at that time (e.g., if the employer has at least 100 employees).

Who is Covered?

Any employer who has at least 100 employees at any time while the ETS is in effect. The employee count includes part-time employees, employees that work from home and that work at various locations that are owned and operated by the same corporation. Although employees that telework or work from home are included in the count, the requirements for mandatory vaccination and testing may not apply to them but will apply to all other employees of the organization.

What is Required?

The Standard requires employers to establish, implement and enforce a mandatory employee vaccination policy. If certain employees will be granted an exception to vaccination, policies must be included that require them to comply with weekly COVID-19 testing requirements and to wear face coverings when working near other employees or patients.

When Must Requirements Be Met?

If your workplace is covered by the new ETS, you will have until December 5, 2021 to implement the following requirements of the rule:

1.   Establish a policy on vaccination. OSHA has provided two sample policies available here: https://www.osha.gov/coronavirus/ets2 You may simply add your workplace-specific policies where indicated in the template.

2.   Determine vaccination status of each employee, obtain acceptable proof of vaccination, and maintain records and a roster of vaccination status.

The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated. The following list includes the acceptable documentation for 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).

An employee who does not possess their COVID-19 vaccination record (e.g., because it was lost or stolen) should contact their vaccination provider (e.g., local pharmacy, physician’s office) to obtain a new copy or utilize their state health department’s immunization information system. In instances where an employee is unable to produce acceptable proof of vaccination listed above, a signed and dated statement by the employee will be acceptable. The employee’s statement must:

  • attest to their vaccination status (fully vaccinated or partially vaccinated);
  • attest that they have lost or are otherwise unable to produce proof required by this section; and
  • include 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.”

Employees should include in their statement, to the best of their recollection, 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) to be acceptable.

3.   Provide support for employee vaccination.

Vaccination:  Employers are required to support COVID-19 vaccination for each employee by providing reasonable time to each employee during work hours for each of their primary vaccination dose(s), including up to four hours of paid time, at the employee’s regular rate of pay, for the purposes of vaccination. The maximum of four hours of paid time that employers must provide for the administration of each primary vaccination dose cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave. This requirement applies to the primary vaccination dose(s) necessary to achieve full vaccination (one or two doses depending on the vaccine). Currently-authorized FDA vaccines include Janssen (Johnson & Johnson), which is a single-dose primary vaccination, and Pfizer-BioNTech and Moderna, which have a two-dose primary vaccination series.

Recovering from side effects:  An employer may require an employee to use accrued paid sick leave when recovering from side effects experienced following a primary vaccination dose. Additionally, if an employer does not specify between different types of leave, the employer may require employees to use that leave when recovering from vaccination side effects. If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects.

Employers may place a cap on paid time off to recover from side effects. Generally, OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance.

4.   Remove any employee from the workplace who receives a positive COVID-19 test or COVID-19 diagnosis and keep the employee removed until they meet (CDC) return to work criteria.

5.   Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes, except:

  • When an employee is alone in a room with floor to ceiling walls and a closed door.
  • For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements.
  • When an employee is wearing a respirator or facemask.
  • Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance with this paragraph (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).

According to OSHA’s definition, “face covering” means a covering that: (1) completely covers the nose and mouth; (2) is made with two or more layers of a breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source); (3) is secured to the head with ties, ear loops, or elastic bands that go behind the head. If gaiters are worn, they should have two layers of fabric or be folded to make two layers; (4) fits snugly over the nose, mouth, and chin with no large gaps on the outside of the face; and (5) is a solid piece of material without slits, exhalation valves, visible holes, punctures, or other openings. This definition of face covering allows various different types of masks including clear face coverings or cloth face coverings with a clear plastic panel that, despite the non-cloth material allowing light to pass through, otherwise meet this definition and which may be used to facilitate communication with people who are hearing impaired or others who need to see a speaker’s mouth or facial expressions to understand speech or sign language, respectively.  Face coverings can be manufactured or homemade, and they can incorporate a variety of designs, structures, and materials. 

6.   Provide each employee with the following information about the ETS:

7.   Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours.

Covered employers will have until January 4, 2022 to implement the remaining requirements of the rule:

8.   Ensure employees who are not 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).

Under the ETS, a “COVID-19 test” must be a test for SARS-CoV-2 that is:

  • cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (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.

The ETS does not require employers to pay for any costs associated with COVID-19 testing.

Employers must ensure that testing continues and that all test results are confidentially maintained for all employees who remain unvaccinated as long as the ETS is in effect.

Employees who have completed the entire primary vaccination by January 4, 2022 (meaning one dose of Johnson & Johnson vaccine or two-doses of Pfizer-BioNTech or Moderna vaccines) do not have to undergo weekly testing if they have not yet completed the two-week waiting period.

OSHA has made available a Frequently Asked Questions web page for the Emergency Temporary Standard here: https://www.osha.gov/coronavirus/ets2/faqs

Due to pending legal challenges to the ETS, the enforcement deadlines included in the Standard are subject to modification. Eagle Associates will keep you informed if any substantive changes are made to the ETS.

Custom Safety Program Subscribers:   Eagle Associates will provide guidance documents for Custom Safety Program Subscribers on November 15, 2021, that will provide more information on customizing the Policy templates provided by OSHA. You may access the guides in the Member Services area of our website on the Custom Safety Program Materials web page.