OSHA Releases Emergency Temporary Standard for Vaccine and Testing Mandate

November 4, 2021

[UPDATE: 11/6/2021 – A federal appeals court has temporarily blocked the Biden administration’s vaccine mandate for businesses with 100 or more employees]

OSHA released its 490-page Emergency Temporary Standard (ETS) governing employers with 100 or more employees Thursday, requiring COVID-19 vaccination and/or weekly testing mandates. The ETS takes effect Friday Nov. 5, 2021, and allows employers a 30-day window, or until Dec. 5, 2021, to comply with all requirements other than the testing requirement for employees who have not been fully vaccinated. The ETS gives employers an additional 30 days, or until Jan. 4, 2022 to comply with the testing requirement. Effectively, this means that by no later than Jan. 4, 2022, employers with 100 or more employees will need to make sure that their employees have received their final vaccination dose. Thereafter, employers must require weekly testing for all unvaccinated employees. This standard was distributed by OSHA “based on its enforcement experience during the pandemic to date, that continued reliance on existing standards and regulations, [and finding] the General Duty Clause of the OSH Act, 29 U.S.C. 654(a)(1), and workplace guidance, in lieu of an ETS, is not adequate to protect unvaccinated employees from the grave danger of being infected by, and suffering death or serious health consequences from, COVID-19.” The 100-employee threshold was instituted to focus on “companies that OSHA is confident will have sufficient administrative systems in place to comply quickly with the ETS.” Regardless of OSHA’s confidence, employers may be reeling from the short window of time allotted to bring their workplaces into compliance. KJK’s in-depth treatment of the mandate requirements is forthcoming. Until then, here is what employers need to know:

Who Is Covered Under the ETS?

  • The ETS generally applies to workplaces under OSHA’s authority and jurisdiction with at least 100 employees firm- or corporate-wide at any time the ETS is in effect.

How to Begin the Process of Compliance

Businesses with 100 or more employees should take the following steps below to prepare for the December 5 deadline to comply with OSHA’s ETS.

  • Develop, implement and enforce:
    • A mandatory COVID-19 vaccination policy.
      • As an alternative, employers may create a carveout allowing unvaccinated employees to elect weekly testing and wearing a face covering at the workplace.
      • Under the ETS, employers are not required to pay for COVID-19 testing, but they may do so. Be sure to check for other state and local requirements that may create a duty for an employer to pay for testing.
      • Testing Frequency:
        • Weekly testing is required for employees who report to a workplace at least once per week.
        • Testing must occur within seven days of return to the workplace for employees who report to work in-person less frequently.
      • A policy requiring employees to:
        • (1) Promptly notify the employer of a positive COVID-19 test;
        • (2) Immediately remove an employee who tests positive for COVID-19 from the workplace, regardless of vaccination status; and
        • (3) Keep COVID-positive employees out of the workforce until they meet return-to-work criteria.
      • Employers must provide time off to support vaccination, including up to four hours of paid time for each dose of a vaccine. Employers must also allow “reasonable” time and paid sick leave for employees to recover from vaccination side effects.
  • Provide employees with:
    • Information regarding your COVID-19 vaccination policy and procedures;
    • The CDC Document: “Key Things to Know About COVID-19 Vaccines;”
    • Information about discrimination and retaliation protections; and
    • Information regarding criminal penalties for knowingly supplying fake documents or false documentation.
  • Report to OSHA:
    • Work-related COVID-19 fatalities within eight hours of learning of them; and
    • Work-related COVID-19 in-patient hospitalizations within 24 hours of learning of them.
  • Other Requirements and Recommendations:
    • Employers must mandate face coverings for unvaccinated employees in close proximity with other workers.
    • Employers must not prevent face coverings for employees unless such coverings cause a severe workplace hazard (e.g., interfering with safe operation of equipment).
    • Employers should determine employees’ current vaccination status and obtain proof of vaccination;
    • Employers must keep a roster of vaccinated and unvaccinated employees.
    • An employee’s individual vaccination and testing records must be made available for that employee to view and copy.
    • An employee or employee representative, upon request, must be provided by his or her employer the aggregate number of fully vaccinated employees at the workplace along with a total number of employees at that workplace.

What are the Exceptions?

  • Employees Exempt from ETS:
    • Employees who work-from-home;
    • Employees who do not report to work where coworkers or customers are present; and
    • Employees who work exclusively outdoors.

Legal challenges to the ETS have already been made and a number of states, including Ohio, have stated that they will file additional lawsuits. KJK will continue to stay on top of developments related to workplace vaccine mandates and provide more in-depth analysis and guidance on the Emergency Temporary Standard and what it means for your business. In the meantime, please reach out to Rob Gilmore at rsg@kjk.com or 216.736.7240 with any questions.