OSHA's Vaccine and Testing Guidance: Your Top 5 Questions Answered

The Occupational Safety and Health Administration (OSHA) posted an Emergency Temporary Standard (ETS) mandating that all private employers with 100 or more employees ensure their employees are COVID-19 fully vaccinated before entering the employer’s worksite or, at the employer’s option, require employees who remain unvaccinated and want to come to the worksite to wear an approved face covering and produce a negative COVID-19 test at least weekly. Employers must offer up to four hours of additional paid time off, including travel time, per vaccine dose to allow employees to be vaccinated and reasonable time and paid sick leave to recover from side effects experienced after each vaccine dose. The ETS remains in effect for a maximum of six months. This ETS implements President Biden’s COVID-19 Action Plan, which aims to accelerate the pace of COVID-19 vaccinations in the United States.

The ETS is effective immediately upon its publication in the Federal Register. Employers must comply with most requirements within 30 days of publication (December 6th) and with optional testing requirements within 60 days of publication (January 4th). Employees who have completed their vaccination by that date do not have to be tested, even if they have not yet completed the 2-week waiting period. Below are key questions answered by the ETS: 

  1. Which employers must comply? 
    If you are a private employer and have 100 or more employees firm- or corporate-wide at any time the ETS is in effect, you must comply with the ETS to avoid potential OSHA penalties of $13,653 per violation with higher penalties for willful violations. Federal OSHA rules do not apply to public sector employers (e.g., public school districts, state and local governments). However, 26 states, Puerto Rico and the US Virgin Islands have OSHA-approved state plans that apply to these employers. The ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or settings where an employee provides healthcare services or healthcare support services and is subject to OSHA’s ETS for Healthcare workers, In the preamble to the ETS, OSHA stated that the ETS preempts inconsistent state and local requirements, so if you are located in a state or locality prohibiting vaccine mandates, discuss with legal counsel.

  2. Which employees are affected?
    The ETS requirements apply to all employees who want to come to the employer’s workplace, as well as employees working offsite with other individuals such as coworkers or customers. It does not apply to employees who work remotely 100% of the time and never come into contact with coworkers or customers or who work exclusively outdoors. Employees who are not fully vaccinated and report to a workplace where other individuals, such as coworkers and customers, are present must be tested for COVID-19 at least once every 7 days and generally must wear an approved face covering when indoors and while in a vehicle with another person for work purposes. Employers may require vaccinations without the testing option, with exceptions for those employees for whom a vaccine is medically contraindicated, for whom medical necessity requires a delay in vaccination, and subject to providing a reasonable accommodation, absent undue hardship, for employees with disabilities or a sincerely held religious belief, practice, or observance.  

  3. How is full vaccination defined?
    Employees are considered fully vaccinated two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine. There is currently no post-vaccination time limit on fully vaccinated status – that is, receipt of booster shots are not required to be considered fully vaccinated. Employees are considered fully vaccinated if they have received COVID-19 vaccines currently approved or authorized for emergency use by the U.S. Food and Drug Administration – Pfizer-BioNTech, Moderna, and Johnson & Johnson COVID-19 vaccines – or COVID-19 vaccines that have been listed for emergency use by the World Health Organization (e.g., AstraZeneca/Oxford). Employees are also considered fully vaccinated if they have documentation that they received a primary vaccination with an active COVID-19 vaccine candidate as part of a clinical trial at a U.S. site, provided vaccine efficacy has been independently confirmed. More information is available at Interim Clinical Considerations for Use of COVID-19 Vaccines | CDC.  Proof of a prior-COVID-19 infection or a recent antibody test is not an acceptable substitute.

  4.  What are the deadlines for employers to require proof of vaccination, face coverings or, if applicable, the first periodic negative test result? 
    Employers are required to implement their mandatory vaccination policy within 30 days of the date of publication (December 6th). At a minimum, this would mean that employers would need to obtain proof of vaccination status by that date. Acceptable documentation of vaccination status includes an immunization record, medical records documenting vaccination, the COVID-19 Vaccination Record Card, any other official documentation of vaccination, and, in instances where an employee is unable to provide acceptable proof, a signed and dated attestation of their vaccination status. As of December 6th, employees who do not submit proof of full vaccination must be required to wear a face covering when indoors or when occupying a vehicle with another person for work purposes.

    Employers allowing the weekly testing and face covering option must implement the related requirements within 60 days of the date of publication (January 4th). An unvaccinated employee who reports to work at least once every 7 days must be tested at least once every 7 days and provide the result to the employer within 7 days of the last provided test result. Employees who do not report to the workplace as frequently must be tested within 7 days prior to returning to the workplace and provide documentation of that result upon return to the workplace.  If an employee fails to provide such documentation or tests positive for COVID-19, the employee must be removed from the workplace.

    Employers must maintain vaccination records and test results while the ETS is in effect and treat them as confidential medical records – subject to ADA confidentiality, but not HIPAA privacy, standards. If an employee fails to provide required proof and does not request a medical or religious accommodation, the employer should discuss next steps with legal counsel.

  5. If an employer provides a weekly testing and face covering option, who pays for the COVID-19 tests and required face coverings?
    The ETS confirmed that employers need not pay for the COVID-19 tests or face coverings. Under current guidance, group health plans are only required to cover the cost of testing for diagnostic purposes, not for employment or surveillance purposes. If necessary, employees may seek reimbursement for testing and personal protective equipment from a health FSA, HRA or HSA. The ETS acknowledges that other laws, regulations and collective bargaining agreements may require an employer to pay for testing and face coverings. An employer should discuss applicability of such laws and regulations with legal counsel.

    Acceptable COVID-19 tests include any cleared, approved, or authorized, including in an Emergency Use Authorization, by the U.S. Food and Drug Administration (FDA).  A test that is self-administered with results that are self-read by the employee are not acceptable unless observed by the employer or an authorized telehealth proctor.  In general, acceptable face coverings may be manufactured or homemade, but must completely and snugly cover the nose and mouth, be made with two or more layers of a tightly woven, breathable fabric or with a clear plastic panel that is secured with ties, ear loops, or elastic bands that go behind the head.  

This guidance will require ongoing focused attention to achieve compliance. For a deeper dive on the OSHA requirements, view our Nov. 8 webcast: COVID-19 Vaccination and Testing ETS.

Steven Schinderle
by Steven Schinderle

Principal, Mercer Health

Wade Symons
by Wade Symons

Partner, Mercer Health

Rebecca Atkins
by Rebecca Atkins

Principal, Mercer Health

Dorian Z. Smith
by Dorian Z. Smith

Partner, Mercer’s Law & Policy Group

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