On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) released the long-awaited COVID-19 Vaccination Emergency Temporary Standard (ETS), affecting employers with 100 or more employees. Below is a summary of the pertinent points of the newly-issued ETS, along with answers to some of the burning questions of interest to employers.

What is Required?

By Dec. 5, 2021, employers must comply with the following requirements:

• Develop a mandatory COVID-19 vaccination policy, unless the employer instead establishes, implements, and enforces a policy allowing un-fully-vaccinated employees to undergo weekly COVID testing AND wear face covering at the workplace (discussed further below).

• Ensure that each employee who is not fully vaccinated wears a face covering when indoors or occupying vehicle with another person for work purposes (there are some limited exceptions to this discussed below).

• Determine employee vaccination status; obtain acceptable proof of vaccination; maintain records of status; maintain roster of each employee’s status. 

• Provide reasonable time, including up to 4 hours of paid time off, to receive vaccination – and reasonable time and paid sick leave to recover from any side effects of each dose.

• Require employees to promptly provide notice to their employer when they received a positive COVID test or diagnosis. 

• Immediately remove any employee from workplace, regardless of vaccination status, who tests positive or is diagnosed with COVID.

• Keep removed employees out of the workplace until they meet criteria for returning to work.

• Provide employees, in a language and at a literacy level the employees understand: 
  • Information about the requirements of OSHA’s mandate and the employer’s workplace policies/procedures established to implement the requirements.
  • With the CDC document entitled “Key Things to Know about COVID-19 Vaccines.”
  • Information about protections against retaliation and discrimination.
  • Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

• Report work-related COVID fatalities to OSHA within eight hours and work-related COVID in-patient hospitalizations within 24 hours.

• Make available an employee’s COVID vaccine documentation and any test results (for inspection and copying) to that employee and to anyone having written authorized consent of that employee.

• Make available to employees (or the employee’s representative), the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace. Employers must also provide this aggregate information to OSHA within four hours of a request.

By Jan. 4, 2022, employers must comply with the following requirements: 

• Ensure that each employee who is not fully vaccinated is tested for COVID at least weekly (if the employee is working in the workplace at least once/week) or within 7 days before returning to work (if the employee is away from workplace for week or longer).

Frequently Asked Questions

1. How do we count 100 employees? 

In determining what constitutes 100 employees, employers are to include all employees across all U.S. workplaces, regardless of vaccination status or where they work:

• This is not determined on a location-by-location basis.
• Part-time employees are included and “count” the same as full-time employees.
• Seasonal or temporary employees are included the same as full time employees.
• Employees working from home count towards the 100 employee threshold.
• Employees who work exclusively outdoors are counted as well.
• Employees who are minors also count towards the 100 employee threshold.
• Independent contractors do not count.

The 100-employee threshold is determined by looking initially at workforce size as of Nov. 5, 2021. However, if an employer has less than 100 employees on Nov. 5, but subsequently hires more and goes over 100, that employer is covered. 

Once an employer is subject to the OSHA standard, they continue to remain subject to the requirements even after their workforce falls under 100 employees. 

2. What employees are covered by the ETS? 

The OSHA standard applies to workers who work at least part of the time around other individuals. So, if a worker works entirely from home, they are not subject to the ETS’s vaccination/testing mandate (although they still count towards the 100 employee threshold). 

Employees who work exclusively outdoors are not subject to the ETS’s vaccination/testing mandate. However, if employees work indoors on some days for more than a de minimis time (i.e. to use the restroom), or if the employee rides in a vehicle with other employees as part of work duties, they are covered. 

3. Are certain employees entitled to an accommodation exempting them from the policy? 

The ETS identifies the following groups of employees exempt from the vaccination mandate: 

1. Employees for whom a vaccination is medically contraindicated.
2. Employees for whom medical necessity requires a delay in vaccination.
3. Employees entitled to a reasonable accommodation due to a disability, a pregnancy-related concern, or a sincerely held religious belief. 

4. What about newly hired employees? 

New employees are to receive vaccination “as soon as practicable,” but the standard does not clarify a set timeline for compliance.

5. What if an employee cannot receive vaccination before Dec. 5, 2021? 

The standard does not require that an employer terminate an employee if they are not vaccinated by the Dec. 5, 2021 policy deadline.

If an employee is not “fully vaccinated,” by Dec. 5, 2021, they must be required to wear a mask while working until the time they can prove they are fully vaccinated. Additionally, if an employee is not fully vaccinated by Jan. 4, 2022, then they will also be subjected to the weekly testing requirement. 

6. What counts as being “fully vaccinated?” 

An employee is fully vaccinated if two weeks have passed since they received their second dose of a 2 dose vaccine (such as Pfizer-BioNTech or Moderna), or two weeks have passed since they received their single-dose vaccination (such as Janssen (Johnson & Johnson)). 

7. Are employees who have previously had COVID-19 considered “fully vaccinated” through natural immunity for the purposes of complying with the mandate? 

No. 

8. When does a non-fully-vaccinated person need to wear a mask? 

An unvaccinated individual (meaning an employee who is not fully vaccinated), must wear a face covering at all times while working indoors or when occupying a vehicle with another person for work purposes, except in the following circumstances: 

1. When an employee is alone in a room with floor to ceiling walls and a closed door.
2. For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements.
3. When an employee is wearing a respirator or facemask.
4. Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance with this paragraph (for example, when it is important to see the employee’s mouth for reasons related to their job duties). 

9. What about state laws that prohibit requiring that employees be vaccinated? 

OSHA has stated that the new standard preempts any contrary state law. 

10. What about unionized workforces? 

Employers in unionized workplaces with 100 or more employees must, like all covered employers, follow the minimum requirements established by the standard.

Nothing in the standard, however, prevents employers from agreeing with employees and their representatives to implement additional measures, and the standard does not displace collectively bargained agreements that exceed the requirements of the standard. As examples of additional measures that could be implemented via collective bargaining, employers might agree to cover the costs of face coverings or medical removal, or to adopt a requirement that all employees, regardless of vaccination status, wear face coverings while working indoors. 

11. Who pays for the time spent getting the vaccine? 

Employers are prohibited from requiring employees to use personal time or sick leave to get the vaccination. If the employee, however, voluntarily chooses to get vaccinated outside of work hours, they are not entitled to additional leave as “comp time” for the time they spent getting vaccinated.

However, employers can require employees to use accrued paid sick leave or PTO to recover from side effects experienced follow a primary vaccination dose, although employers cannot require employees to borrow against future paid sick leave or PTO to recover from vaccination side effects (i.e., go into the negative). 

If employers do not already provide paid sick leave or PTO, then they must do so to allow employees to recover from side effects experienced following each vaccination dose. 

12. Who pays for the cost of weekly testing? 

Employers are not required to pay for any costs associated with testing under the standard. However, employers can choose to pay for testing, and employer payment for testing may be required by state law or under a previously negotiated collective bargaining agreement. 

13. What tests can be used to comply with the testing requirement? 

The COVID-19 test used must be approved or authorized (including under an Emergency Use Authorization), by the FDA. It must be a diagnostic test. COVID-19 antibody tests may not be used to satisfy the testing requirement. 

Self-administered and self-read tests are not compliant with the ETS unless the test is observed by the employer or by an authorized telehealth provider.

14. What if tests are not readily available? 

OSHA has stated its belief that there are sufficient COVID-19 tests available and adequate capacity to meet the increased testing demand. However, if an employer is unable to comply due to inadequate test availability, OSHA will look at efforts made by the employer to comply, as well as the pattern and practice of the employer’s testing program, and will consider refraining from enforcement where the facts show “good faith” in attempting to comply with the standard.

15. What is to be included in the written mandatory vaccination policy? 

OSHA has identified the following factors to be included in the written mandatory vaccination policy: 

1. Applicable exclusions/exemptions from the written policy (e.g., medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities, pregnancy-related concerns, or sincerely held religious beliefs).
2. Information on determining an employee’s vaccination status and how this information will be collected.
3. Paid time and sick leave for vaccination purposes.
4. Notification of positive COVID-19 tests procedures and procedures governing removal of COVID-19 positive employees from the workplace.
5. Information to be provided to employees regarding the policy.
6. A listing of disciplinary action to be taken against employees who do not abide by the policy. 

16. Do employers need to submit their mandatory vaccination policy to OSHA?

No. The policy does not need to be submitted, but, upon request, must be provided to OSHA within four business hours. 

17. How do employers determine vaccination status? 

An employer may obtain a physical copy of a vaccination record or they may allow employees to provide a digital copy of acceptable records, including, for example, a digital photograph, scanned image, or PDF of such a record that clearly and legibly displays the necessary vaccination information. If an employee has lost their vaccination records, they can attest to their vaccination status.

Employers must maintain a record of this information, and must treat it as confidential medical information on employees. 

18. What is the penalty for non-compliance? 

The ETS does not lay out an express penalty for violations, but as of Jan. 8, 2021, OSHA has the authority to seek the maximum penalty amounts for violation of safety standards: 

Type of Violation	Penalty
Serious Other-Than-Serious Posting Requirements	$13,653 per violation
Failure to Abate	$13,653 per day beyond the abatement date
Willful or Repeated	$136,532 per violation

Notably, the ETS notes that it gives OSHA the authority to “separately cite employers for each instance of the employer’s failure to protect employees and for each affected employee, where appropriate.”

19. Is this standard going to be challenged in court?

Several organizations/state governmental entities have already indicated that they intend to challenge the legality of the ETS, although whether these challenges will be successful is yet to be seen.

Summary and Conclusion

Further information and clarification regarding the ETS is sure to develop over the coming days.

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus or contact the Taft Employment and Labor Relations attorney with whom you regularly work.