On November 4th, 2021, OSHA released its high-anticipated emergency temporary standard (ETS), commonly referred to in the press as the vaccine mandate. The general aim of this new standard has been known for some time, but, with the specific details finally available, employers are rushing to ensure that they are prepared to meet its requirements. The foundational argument of the ETS is that OSHA considers COVID-19 infection to be a grave danger to employees, so they’re establishing minimum vaccination, testing, and face covering requirements to address this.
Unsurprisingly, this new standard has been met with several legal challenges, but employers cannot afford to wait for an order from the court of appeals to begin preparing for compliance. Here’s what you need to know:
The ETS technically went into effect immediately upon its publication in the Federal Register on November 4th, however, enforcement of the standard doesn’t begin until December 6th, 2021. On that day, all provisions of the ETS come into effect except for the testing requirement (more on this below). The testing requirement will be enforced on January 4th, 60 days after publication.
Which Employers are Impacted?
The standard applies to all U.S. employers with 100 or more employees. OSHA’s rationale for the 100-employee threshold is that larger employers “have the administrative capability to implement the standard’s requirements promptly” but are less confident that smaller employers can do so without disruption. This means that two-thirds of all private sector workers in the nation, including those working in the nation’s largest facilities where the deadliest outbreaks occur, will be better protected from infection.
The only 100+ employee workplaces exempted from this policy are those already complying with one of two similar standards: 1) the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, or 2) the Healthcare Emergency Temporary Standard.
Some individual employees at these companies may be exempt, however. This includes employees that don’t report to a workplace where coworkers or customers are present, as well as employees who exclusively work from home or outdoors.
Employer Vaccination Policies
All employers are required to develop and implement a policy that either requires all existing and new employees to be fully vaccinated, or allows each employee to choose between vaccination or providing proof of weekly testing and wearing a face covering.
Employers are also required to determine the vaccination status of every employee and keep “an acceptable proof of vaccination and roster of each employee’s vaccination status”. These records must be kept and considered as employee medical records for the time that the ETS is in effect.
OSHA has provided sample policies on its website for reference.
What Counts as “Acceptable Proof of Vaccination”?
Here is the list provided by OSHA:
- Record of immunization from a health care provider or pharmacy
- Copy of US CDC COVID-19 vaccination record card
- Copy of medical records documenting the vaccination
- Copy of immunization records from a public health, state, or tribal immunization information system
- Copy of other official documentation containing type of vaccine, date(s) of administration, and name of health care professional or clinic administering the vaccine
- Signed and dated attestation ONLY where employee has lost or is otherwise unable to produce other acceptable proof
What are the Requirements for Unvaccinated Employees?
Employers that opt to implement a policy with a testing option must require each non-exempt employee who is not fully vaccinated to (1) be tested at least once every 7 days, and (2) provide proof of test results to the employer no later than 7 days after they last provided a test result.
In some instances, an employee might be away from the workplace for longer than a week, and they are not required to provide test results during that time. However, they must be tested within a week of returning to the workplace and must provide the results of that test upon return.
Employer Support for Vaccination and Testing
The ETS requires employers to provide employees up to four hours of paid time off to receive each vaccination dose, as well as reasonable time and paid sick leave to recover from any side effects experienced.
Under the ETS, employers are not, however, required to pay for any costs associated with testing, although they are not prohibited from doing so.
Exemption from Testing
The only instance provided by the ETS where an unvaccinated non-exempt employee will actually be exempt from complying with their company’s testing policy would be if they test positive for COVID-19 or are positively diagnosed by a licensed health care provider. In that situation the employee would be exempt from regular testing for 90 days.
Can State or Local Laws Overrule the ETS?
Barring a permanent injunction or Supreme Court ruling, the ETS is written specifically such that it preempts any state or local laws.