URGENT OSHA COVID-19 UPDATE:
Friday, Nov. 5, 2021: OSHA published the COVID-19 vaccination emergency temporary standard (ETS) plus a list of FAQs. Under this new rule, employers with 100 or more employees must require COVID-19 vaccinations among workers or accept proof of negative tests each week and require face coverings. Employers will be required to comply with most provisions of the ETS by Dec. 5, 2021, and the testing requirements by Jan. 5, 2022. Companies that fail to comply may be subject to significant fines.
Employers covered by the ETS will need to take steps to comply and effectively communicate changes to employees.
Organizations must decide whether to require all employees to get vaccinated or to allow non-vaccinated employees to get tested each week and wear a face covering at work.
Below are helpful resources, summarizing the ETS and diving further into some of the requirements.
Summary of Key Considerations and Preparations
Please refer to the published ETS, FAQs, and consult with legal counsel as needed.
If you are not an employer with more than 100 workers or are covered by the health care ETS, this will not apply to you. Part-Time and Seasonal workers are also counted in the 100 employee headcount. If you have employees with a staffing agency, the staffing agency is responsible for those employees.
The Requirements of the ETS Also Do Not Apply To:
Employees who do not work with other individuals present.
Employees when they are working from home.
Employees who work exclusively outdoors.
Those covered under the Safer Federal Workforce Task Force.
Public employers in states without State plans.
Vermont is a State Plan State.
New Hampshire is not a State Plan State.
Update or Create a COVID-19 Vaccination Policy:
(Two sample policies are provided in the buttons below)
Employers Are Required To:
Allow reasonable time (i.e. up to four hours of paid leave time per dose) to receive the vaccination.
Allow reasonable time (i.e. up to two paid sick leave days per dose) to recover from any side effects of the vaccination.
Include procedures for compliance and enforcement.
Create a Secure and Confidential System to Track Proof of Employee Vaccination:
To be acceptable as proof of vaccination, any documentation should generally include the employee’s name, type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
Acceptable proof could be:
the record of immunization from a health care provider or pharmacy;
A copy of the U.S. CDC COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020) (CDC, October 5, 2021).
A copy of medical records documenting the vaccination.
A copy of immunization records from a public health, state, or tribal immunization information system; or a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
Any employee that has not provided acceptable proof of their vaccination status must be treated as not fully vaccinated.
The employer must maintain a roster of each employee’s vaccination status.
Employees who falsify vaccination documentation could face a legal process that includes the possibility of jail time. An employer who knows the employee has provided false information and accepts it as proof is also subject to these measures.
This information is subject to applicable legal requirements for the confidentiality of medical information.
Employers who collected employee vaccination records prior to the ETS going into effect may not be required to collect new records (for details, please see section E of the ETS).
Prepare Accommodation Forms and Create a Process to Handle Medical and Religious Exemption Requests:
(Sample religious and medical exemption forms are provided in the buttons below)
Prepare to Collect COVID-19 Test Results From Employees Who Are Not Fully Vaccinated and Require These Individuals to Wear Face Coverings at Work:
Testing and face-covering requirements apply to any individual not yet fully vaccinated.
Employers must comply with the ETS testing requirements by Jan. 5, 2022.
Under the ETS, employers are not required to pay for testing or face coverings but may be required under other laws, regulations, or collective bargaining agreements.
Under the ETS, a “COVID-19 test” must be a test for SARS-CoV-2 that is:
Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
Administered in accordance with the authorized instructions; and
Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
Antibody tests are not an approved testing method.
Test results must be maintained as confidential medical records.
If an employee is not fully vaccinated and they do not provide documentation of a COVID-19 test result as required by the ETS, they should be removed from the workplace until a test result is provided.
Each worker who is not fully vaccinated should be tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
Please reference the FAQs for more details on testing and notification requirements.
Plan to Respond if an Employee Tests Positive or Is Diagnosed With COVID-19:
The employer must immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider.
For more information on return-to-work criteria, please reference section 7 of the FAQs.
Communicate the Policy and Procedures for Compliance and Enforcement to Employees
Furthermore, the ETS is standing as a draft of a permanent policy that is likely to go into effect. There will be open commenting prior to this being published as a permanent standard.
In addition to the guidance provided by OSHA, we have provided you with template policies and forms located above and in the document library below:
If you have any questions about this development, please do not hesitate to reach out.