OSHA Issues COVID-19 Emergency Temporary Standard

November 16, 2021

In response to a directive from President Biden, on November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced its Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy” or adopt a policy under which employees can either be vaccinated or be tested for COVID-19 on a regular basis and wear a face covering at work.

In other words, employers can choose between two approaches. They can establish a mandatory vaccination policy for all employees or, alternatively, they can implement a policy permitting employees to either be vaccinated or provide proof of regular testing and wear a face covering while in the workplace.

A mandatory vaccination policy must require vaccination of all employees, except: “(1) those for whom a vaccine is medically contraindicated, (2) those for whom medical necessity requires a delay in vaccination, or (3) those who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.”

The ETS also establishes COVID-19 testing criteria, including which tests can be used. Generally, unvaccinated workers must be tested every seven days. The test cannot be self-administered and self-read, unless the employer or another authorized person observes the testing. Employers are not required to bear the cost of testing employees. Unvaccinated employees cannot enter the workplace without providing proof of testing.

The ETS requires employers to ensure that all employees who are not fully vaccinated wear a face covering when indoors or in a vehicle with someone else for work purposes. Exceptions to this requirement are: (i) when an employee is alone in a room with floor to ceiling walls and a closed door; (ii) while eating or drinking in the workplace or for identification purposes to comply with safety or security requirements; (iii) when employees are using respirators or face masks; or (iv) where the employer can show that using face coverings is not practical or creates a greater hazard.

When face coverings are required, employers must ensure they are properly worn (fully covering the mouth and nose) and are replaced when wet, soiled, or damaged.

Employers must verify the vaccination status of each employee and must require acceptable proof of vaccination, such as a vaccine record from a pharmacy, health care provider, or the COVID-19 vaccination card issued by the Centers for Disease Control.

The ETS requires employers to provide reasonable time, including up to four hours of paid time off, to receive each dose of the vaccine and reasonable time and paid sick leave to recover from any side effects.

Employers must require employees who test positive for COVID-19 to notify the employer of the positive test result. Employees who test positive must be removed from the workplace immediately. They cannot return until they receive a negative test result, meet CDC return-to-work criteria, or are cleared to return by a licensed health care provider.

The ETS requires employers to inform each employee, “in a language and at a literacy level the employee understands,” of the following: (1) The ETS requirements and any employer policies or procedures implementing the ETS; (2) the efficacy, safety and benefits of COVID-19 vaccination; (3) anti-retaliation rules pertaining to work-related injuries or illnesses; and (4) criminal penalties for knowingly providing false statements or documents.

The ETS applies to employers with 100 or more employees. It became effective November 5, the date the interim final rule was published in the Federal Register. However, most of the requirements go into effect on December 5 (30 days after publication). COVID-19 testing for unvaccinated employees must begin January 4, 2022 (60 days after publication).

The ETS does not apply to federal contractors. They are subject to similar requirements under Executive Order 14042 (issued September 9, 2021). However, federal contractors that have not entered into a covered contract (i.e., one that includes the E.O. 14042 requirements) by December 5, may need to comply with the ETS until they become subject to a new or modified government contract that incorporates the E.O. 14042 requirements.

This ETS also does not apply to employers who provide healthcare services or healthcare support services. With some exceptions, those employers are covered by a separate ETS that was published in June 2021.

This article is only a summary of some of the main provisions of the ETS and does not provide all the information necessary for complying with the ETS. All quotes in this article are from OSHA’s interim final rule, published in the Federal Register on November 4, 2021.