The Occupational Safety and Health Administration (OSHA) has published the long-awaited Emergency Temporary Standard (ETS) as directed by President Biden in his September 9 COVID-19 Action Plan – Path Out of the Pandemic.

The ETS will take effect as soon as it is published in the Federal Register and sets forth the following two options for employers with over 100 employees:

1. A mandatory vaccination policy.
2. A written policy allowing employees to undergo ongoing testing and masking instead of vaccination.

Employers are required to comply with all aspects of the ETS by December 5, except for the testing program for those employers who choose to provide this option to employees.  In that case, employees must either be fully vaccinated or submit proof of testing by January 4, 2022.

We break down the details below.

Which Employers Are Covered?

All employers with a total of 100 or more (full-time or part-time) employees at any time the ETS is in effect are covered.  The ETS does not apply to workplaces subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or settings where an employee provides healthcare services or healthcare support services when subject to the requirements of § 1910.502.

Which Employees Are Covered?

All employees, with the exception of the following are covered:

• Employees who do not report to a workplace where other individuals are present, including coworkers or customers.
• Employees who work from home.
• Employees who work exclusively outdoors.

A workplace means a physical location (fixed or mobile) where the employer’s work operations are performed, but not an employee’s residence.

What Are the ETS Requirements?

Covered employers must either:

1. Establish, implement and enforce a written mandatory vaccination policy requiring employees to be fully vaccinated; or
2. Establish, implement and enforce a written policy allowing an employee to either choose to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering.

When Is an Employee Fully Vaccinated?

An employee is fully vaccinated two weeks after completing a primary dose schedule.

Do Employees Have to Provide Proof of Vaccination?

Yes.  Employers are required to collect proof of vaccination from employees indicating whether they are fully or partially vaccinated.  Acceptable proof is limited to the following:

• Record of immunization from a healthcare provider or pharmacy.
• A copy of the 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.
• A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the healthcare professionals(s) or clinic site(s) administering the vaccine(s).

What If an Employee Cannot Provide Proof of Vaccination?

If an employee is unable to provide acceptable proof of vaccination as required by the ETS, the employee can provide a signed and dated statement which must include the following:

• Attestation that the employee is fully or partially vaccinated.
• Attestation that the employee has lost or is otherwise unable to produce proof of vaccination as required by the ETS.
• The following statement “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.”
• To the best of their recollection, identification of the type of vaccine administered, dates of administration and name of healthcare professional or clinic site administering the vaccine.

Employees who cannot provide proof of the attestation noted above must be treated as not fully vaccinated.

What Are an Employer’s Record-Keeping Requirements for Proof of Vaccination?

Employers must maintain a record of each employee’s vaccination status and preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated. Employers must also maintain a roster of each employee’s vaccination status.  Note, if the employer has already obtained proof of vaccination before the implementation of the ETS (and has maintained that proof), that documentation will satisfy the ETS’s requirements.

These records and roster are considered employee medical records and must be maintained as such records per §1910.1020 and must not be disclosed except as required by the ETS or other federal law. These records and roster are not subject to the retention requirements of § 1910.1020(d)(1)(i) but must be maintained and preserved while the ETS remains in effect.

Is an Employee Entitled to Time Off Work to Obtain a Vaccination?

Yes.  Employers must provide a reasonable amount of time off to each employee for their primary vaccination doses.  This includes up to four hours of paid time off, including travel time, at the employee’s regular rate of pay.  The remaining time off can be unpaid.

Employers must also provide time off and paid sick leave to recover from side effects experienced following receipt of any primary dose.

If the Employer Allows Testing Instead of Vaccination, What Type of COVID-19 Test Is Acceptable?

FDA-approved tests (including those with Emergency Use Authorization) that are administered according to the authorized instructions and are not both self-administered or self-read unless observed by the employer or authorized telehealth proctor.  The ETS provides the following examples:  tests with specimens that are processed by a laboratory (including home or on-site collected specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.

How Often Must an Unvaccinated Employee Be Tested in Lieu of Vaccination?

An employee who reports at least once every seven days to a workplace where others are present must be tested at least once every seven days.  The employee must provide their testing results to the employer no later than the seventh day following the date the employee last provided their test result.

Employees who do not report to work at least once every seven days must be tested within seven days before returning to the workplace and must provide that test result upon their return to the workplace.

Does the Employer Have to Pay for the Cost of Testing?

The ETS does not direct employers to pay for the cost of testing but notes employers may be obligated to pay for testing pursuant to other laws, regulations, or collective bargaining agreements.  The ETS allows employers to pay for testing voluntarily.

What If an Employee Fails to Provide a Test Result in Accordance with the ETS?

The employer must remove the employee from the workplace until the employee provides a test result.

What If an Employee Tests Positive or Has Been Diagnosed with COVID-19?

The employee must be immediately removed from the workplace. The employer cannot require an employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis.

The employee may return to the workplace only after the employee complies with one of the following:

• Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing.
• Meets the return to work criteria in CDC’s “Isolation Guidance.”
• Receives a recommendation to return to work from a licensed healthcare provider.

The ETS does not require employers to pay for an employee’s time off work due to a positive COVID-19 test or diagnosis.

What Are an Employer’s Record-Keeping Requirements for Testing?

Employers must maintain a record of each test result provided by each employee or obtained during tests conducted by the employer.

These records are considered employee medical records and must be maintained as such records in accordance with § 1910.1020 and must not be disclosed except as required or authorized by the ETS or other federal law. These records are not subject to the retention requirements of § 1910.1020(d)(1)(i) but must be maintained and preserved while the ETS remains in effect.

Does the ETS Have Masking Requirements?

Yes.  Employees who are not fully vaccinated must wear a face covering when indoors and when occupying a vehicle with another person for work purposes unless the employee is:

• Alone in a room with floor to ceiling walls and a closed door.
• Eating or drinking at the workplace.
• For identification purposes, complying with safety and security requirements.

Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance with the ETS mask requirements (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), the employee may be excused from this requirement.

Employers may not prohibit employees, customers or visitors from voluntarily wearing face coverings.

Employers are not required to pay for the cost of face coverings under the ETS.  However, the ETS notes that employers may be required to do so by other laws, regulations, or collective bargaining agreements.

Are There Exceptions to the ETS?

Yes, employees may be entitled to an exception to a mandatory vaccination policy, COVID-19 testing and face-covering requirements if they are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious belief that conflicts with those requirements.  Employees may also be exempt from a mandatory vaccination requirement if the vaccine is shown to be medically contraindicated or those for whom medical necessity requires a delay in vaccination.

Are There Notice Requirements to Employees?

Yes.  Employers must inform each employee, in a language and at a literacy level the employee understands, about each of the following:

1. The requirements of the ETS as well as any employer policies and procedures established to implement this section.
2. COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document, “Key Things to Know About COVID-19 Vaccines.”
3. The requirements of 29 CFR 1904.35(b)(1)(iv), which prohibits the employer from discharging or in any manner discriminating against an employee for reporting a work-related injury or illness, and section 11(c) of the OSH Act, which prohibits the employer from discriminating against an employee for exercising rights under the ETS or as a result of actions that are required by the ETS. Section 11(c) also protects the employee from retaliation for filing an occupational safety or health complaint, reporting a work-related injury or illness, or otherwise exercising any rights afforded by the OSH Act.
4. The prohibitions of 18 U.S.C. 1001 and of section 17 (g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation.

Are There Reporting Requirements?

Employers must report to OSHA each work-related COVID-19 fatality within eight hours of the employer learning about the fatality. Employers must report each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.

By the end of the next business day after a request, employers must make available, for examination and copying, the individual COVID-19 vaccine documentation and any COVID-19 test results for a particular employee to that employee and to anyone having written authorized consent of that employee.

By the end of the next business day after a request by an employee or an employee representative, employers must make available to the requester the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

Employers must provide the following to the Assistant Secretary for examination and copying:

1. Within four business hours of a request, the employer’s written policy required by the ETS and the number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
2. By the end of the next business day after a request, all other records and other documents required to be maintained by the ETS.

OSHA has provided a list of FAQ’s providing further clarification to the ETS, which we expect will be continually updated as questions regarding compliance emerge. We will provide updates as future guidance is issued.