On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its emergency temporary standard (ETS) for employee COVID-19 testing and vaccination. It became effective on November 5 when it was published in the Federal Register but has since come under legal scrutiny with at least one U.S. federal 5^th circuit court issuing a temporary stay challenging the legality and constitutionality of the standard.

Regardless of the ongoing legal challenges, we’ve done our best to summarize OSHA’s ETS. We also encourage you to visit OSHA’s website for further information and consult with your own legal counsel.

Key Takeaways

The OSHA ETS sets a COVID-19 vaccination standard for private sector employers with 100 or more employees. In order to meet the requirements of the ETS, employers must ensure that their employees are either:

1. Fully vaccinated against COVID-19 OR
2. Get 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). The ETS also states that unvaccinated workers must wear a face covering in connection with certain work situations.

While OSHA states that employers are not responsible for any costs associated with COVID-19 testing for unvaccinated employees, be aware that other laws, regulations, or other requirements (like a collective bargaining agreement) might mandate that the employer pays for the test(s).

Subject to ongoing legal challenges, the ETS has a compliance deadline of December 5, 2021, for most provisions and January 4, 2022, for testing requirements to be in place.

Getting Started

If you’re a covered employer, you should develop your own response to the ETS based on your unique circumstances in consultation with your legal counsel. However, the following best practices are suggested if you’re looking for some direction:

Understand the ETS

OSHA has created a dedicated website with the information employers need to comply with the standard. The complete rule as published in the Federal Register is accessible from the site, but its length of more than 400 printed pages may be a challenge to many businesses. Therefore, we recommend that businesses pay attention to the following resources:

• Fact Sheets — The About the ETS and ETS Summary highlight the critical provisions of the full standard. Other sheets cover Workers’ Rights, Penalties for Knowingly Supplying False Information, and Reporting COVID-19 Fatalities and In-Patient Hospitalizations.
• Webinar — For those who prefer listening and watching, this 28-minute video outlines the same information that’s covered in the Fact Sheets.
• FAQs — OSHA has anticipated the most common questions employers will have about the ETS and has created a series of FAQs about Purpose, Scope and Application, Employer Policies, Dates, and more. These FAQs provide an excellent overview of the provisions of the ETS.

Get Started on the December 5 Provisions

Time is of the essence in complying with the standard. The provisions below, taken from 12A of the FAQs page (paragraph m of the rule), shows the requirements effective on December 5, 2021:

• Establish a policy on vaccination. OSHA’s website provides for download of two editable word documents, to support employers who 1) plan for mandatory vaccinations or 2) those who opt for vaccination or testing and face coverings. Downloading these templates and completing your company’s plan is a great way to understand the provisions of the rule, as the templates assume compliance with the key provisions of the ETS. Therefore, we highly recommend employers start their policy as soon as possible.
• Determine vaccination status of each employee, obtain acceptable proof of vaccination, and maintain records and a roster of vaccination status.
• Provide support for employee vaccination.
• Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis.
• Remove any employee who received a positive COVID-19 test or COVID-19 diagnosis.
• Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes.
• 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.
• Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours.
• Make certain records available to employees.

Establish a Testing Plan, If Applicable

The final key date in the ETS is January 4, 2022, at which point employers must 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). If your company will not be requiring mandatory vaccinations, develop your plan for testing and tracking of test results consistent with the provisions of the ETS. We expect employers will comply with this provision in a variety of ways, including in-house spreadsheets, use of third-party vendors, etc. Records must be maintained in accordance with 1910.1020 and preserved while the ETS is in effect.

Upcoming Educational Opportunity

Want to learn more about the ETS and how to make it work in your business? Join us as we host an all-employer webinar on November 15 from 1:00-2:30 p.m.  CT. This webinar will cover what employers with more than 100 employees need to know, what actions you need to take and by what date, and potential vendors that can help with vaccination and testing tracking. Click here to register.

And certainly, if you have any questions, please feel free to reach out. This is a complicated topic, and we’ll do our best to guide you so you’re in compliance.