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How to Comply with OSHA’s COVID-19 Vaccination Emergency Temporary Standard

November 4, 2021

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The Occupational Safety and Health Administration (OSHA) has released an emergency temporary standard (ETS) obligating private employers with 100 or more employees to require vaccination or weekly testing and masking for their unvaccinated employees. The ETS requires covered employers to ensure all unvaccinated employees working in-person to begin wearing masks by Dec. 5, 2021, and provide a negative COVID-19 test on a weekly basis beginning Jan. 4, 2022.

Legal challenges to the ETS have been and will be made, but until these challenges are resolved, employers must prepare for compliance.

All requirements of the ETS, other than testing for unvaccinated employees, are effective 30 days after publication of the ETS in the federal register (i.e., Dec. 5, 2021).

According to OSHA's ETS fact sheet, employers are required by the standard to do the following:

• Implement a mandatory COVID-19 vaccination policy, with or without an exception allowing employees to undergo weekly COVID-19 testing (beginning Jan. 4, 2022) and wear a face covering at the workplace (beginning Dec. 5, 2021).
• Create a list showing the vaccination status of each employee, obtain proof of vaccination and maintain these records.
• Provide employees up to four hours of paid time to receive each primary vaccination dose, and paid sick leave to recover from any side effects experienced following each primary vaccination dose. Booster shots are not covered in this requirement.
• Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). 
• Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19. 
• Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider and keep the employee out of the workplace until return to work criteria are met.
• Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
• Provide each employee with information they can understand about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document "Key Things to Know About COVID-19 Vaccines"); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
• Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
• Make records available to an employee or an employee representative for examination and copying.

Taking the following steps will help an employer to comply with these requirements. 

STEP 1. DETERMINE EMPLOYER COVERAGE.

All private employers with 100 or more total employees at any time the ETS is in effect (i.e., from Nov. 5, 2021 until the ETS expires) are subject to the federal ETS or a state standard that meets or exceeds the requirements of the standard. The 100-employee threshold is based upon a companywide headcount rather than the number of employees at a particular worksite.

Employers should count all employees individually, whether they are full time, part time or working on a temporary basis. Independent contractors and leased employees (where the client employer is not the employer of record) are not counted.

The standard does not apply to workplaces that are covered by the federal contractor requirement or a new vaccination directive from the Centers for Medicare & Medicaid Services for health care workers at facilities that participate in Medicare and Medicaid programs.

The standard also does not apply to employees who work remotely or employees who work exclusively outdoors; however, employers can enforce vaccination or testing requirements for these employees if they choose.

STEP 2. DETERMINE EMPLOYEE VACCINATION STATUS.

Employers are required to determine and maintain the vaccination status of their employees. Include in your vaccination policy the procedures for employees to notify the employer of their status, and which documentation to provide. Create and maintain a roster of employees and their vaccination status for the duration of the ETS. See Step 8 for more information on recordkeeping.

Understanding how many unvaccinated workers an employer has will also help inform the best compliance approach for the organization. For example, an employer with only 10 unvaccinated workers might allow those employees to choose either vaccination or weekly testing, whereas a company with 100 unvaccinated workers may find the logistics of collecting weekly testing documentation too difficult, and therefore decide not to offer the testing option

STEP 3. RESEARCH TESTING.

Whether an employer will offer the option of weekly testing to unvaccinated workers—or only use testing as a religious or disability accommodation—understanding the logistics of testing should be reviewed before determining the employer's compliance approach.

Accessibility

Questions to consider:

• Are there testing locations near the workplace? What are their hours and procedures for testing? How long does it take to get testing results there? Contact these locations to determine which vaccines they offer and what their capacity is for handling your employee testing.
• Is onsite testing a more convenient option? For employers with large numbers of unvaccinated workers, a vendor-run testing program at the workplace might be a good approach.
• What day(s) of the week will the employer require testing? Will local testing locations be open and available to test all impacted workers? For example, if an employer requires a negative test result each Monday, will all employees be able to get a test near the worksite the week before, or will employees need to be tested on their off days? If testing during the workday is the only available option, how will employee late arrivals or early departures for testing affect productivity?
• Which test will the employer accept?
• The rapid test (an antigen test) yields results in about 15 minutes but can give inaccurate results. It appears to be most effective when someone is experiencing symptoms of COVID-19.
• The PCR test (polymerase chain reaction) is the gold standard test. Results are usually available in two to four days. This is the most accurate test, for both symptomatic and asymptomatic individuals, which makes it more reliable for routine testing.

Over-the-counter (OTC) self testing kits are widely available at pharmacies and online, some with mail-in options for results (PCR), while others give results in about 15 minutes (rapid antigen test). The ETS allows for the use of OTC self-tests that are observed by employers or authorized telehealth providers. Self-administered and self-read rapid tests are not acceptable under the ETS.

Cost

While the Families First Coronavirus Response Act, as amended by the Coronavirus Aid, Relief, and Economic Security Act, provides for free COVID-19 testing of insured and uninsured individuals when determined medically necessary by a health care professional, the law does not currently require free testing for general employment purposes (see Q5). Therefore, understanding the cost implications of testing before implementing a policy is advised.  

The ETS does not require the employer to cover the cost of testing; however, employers should consider the following:

• Are there current state laws that would require employers to pay for employment-related costs? For example, California requires the reimbursement to employees for necessary business expenses, which would apply here. Check all applicable states as employees are governed by the laws of the state in which they perform work, which may not be where company headquarters is located.
• What are the projected costs for both the employee and employer for testing? Contact local suppliers to compare pricing, including organizations providing onsite testing services. The IRS has stated that in-home tests would be reimbursable under flexible benefits plans such as flexible spending accounts and health savings accounts, which may help employees manage costs.
• Will the cost of testing, if paid for by the employee, bring the employee's weekly pay below minimum wage? Both the Fair Labor Standards Act and some state laws would not allow this.
• Will an employer's budget allow for employer-paid testing for as long as the ETS is in place (which is up to six months to start, then it could be made a permanent standard)? Or is mandatory vaccination, which is free, the better option?

STEP 4. CONSIDER PAID-TIME-OFF REQUIREMENTS.

The ETS requires employers to provide employees with up to four hours of paid time off to receive the vaccine during normal work hours. This includes time spent scheduling the vaccine appointment, completing paperwork, receiving the vaccine, and traveling to and from the vaccination site. Employers are not required to offer paid time off to employees who choose to receive the vaccine outside of their regular work hours. Booster shots are not included in the federal requirements, but state laws may cover time off for booster shots if required by the employer.

Employers must also provide a reasonable amount of paid sick leave to recover from side effects experienced following vaccination; however, employers may require employees to use paid sick leave benefits already provided by the employer.

Additionally, state COVID-19-related laws might also require additional paid leave for time to get or recover from the vaccine.

For employers who include a testing option for unvaccinated workers, the time spent obtaining a COVID-19 test may be considered hours worked depending on the circumstances, such as when directing employees to use a specific provider at specific times.

STEP 5. ADDRESS REMOTE-WORKER REQUIREMENTS.

The ETS does not cover employees working from home for the duration of the standard. If an employer has remote workers who will never come into the office, employers may use remote work as an option for unvaccinated workers.

If an employer chooses to consider a full-time remote-work option, it should determine how many employees this would apply to, what the employee-eligibility requirements would be, what the associated costs with long-term telecommuting might be and any other data meaningful to the company.

Employers can also choose to enforce a vaccination requirement for remote workers, even though it is not required by the ETS.

STEP 6. DETERMINE A COMPLIANCE APPROACH AND CREATE A WRITTEN POLICY.

After examining the data and requirements in the steps above, employers should determine if they will:

• Allow unvaccinated workers the option of weekly testing in lieu of vaccination.
• Require vaccination for all employees without the option for weekly testing, except when allowed as an accommodation.
• Help employees find testing locations and provide cost information if applicable.
• Pay for testing.
• Increase leave banks for vaccine and/or testing purposes beyond the requirements.
• Allow full-time remote-worker positions to be excluded from the requirements.

A clearly written policy should detail the requirements the employer has decided upon and the consequences for noncompliance. OSHA also provides sample policies for employers on their website.

Procedural requirements might include:

• Required documentation, both for proof of vaccination and for weekly testing.
• A process for employees to submit required documentation and procedures on storage and retention of the information.
• Time frames for current and new hires to comply.
• A system for religious and disability accommodation requests.
• The steps to be taken if an employee fails to comply, up to and including termination.

STEP 7. DEVELOP EMPLOYEE COMMUNICATIONS.

The ETS requires employers to provide employees with information about the ETS, employee rights and protections and the benefits of vaccination. Send a memo to employees that includes the following:

• Information about the requirements of the ETS and workplace policies and procedures established to implement the ETS.
• Information about protections against retaliation and discrimination.
• Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Also provide employees with the CDC document, "Key Things to Know About COVID-19 Vaccines."

Communicate ahead of time where employees can go to get vaccines near the workplace, or how to find a location near their homes, and keep this information easily accessible. Detail whether or not employees must seek testing outside of work hours.

Some employees will most likely choose to leave the company rather than be vaccinated, and early communications may give them a head start, leaving employers with worker shortages. Knowing the percentage of unvaccinated workers and their sentiments as surveyed in step 2 above can help an employer prepare for this. However, any employer with 100 or more workers will be held to the same vaccination requirements, so a mass exit may not come to pass. If warranted, employers may want to communicate that a discharge for violating a company policy (such as mandatory vaccination or testing) generally makes an individual ineligible for unemployment insurance.

STEP 8. ESTABLISH REPORTING AND RECORDKEEPING PROCEDURES.

The ETS requires that employers establish procedures for employees to promptly report a positive COVID-19 test or positive COVID-19 diagnosis to the employer. Upon such notice, employees must be immediately removed from the workplace until return-to-work criteria from the Centers for Disease Control and Prevention (CDC) are met.

Work-related COVID-19 fatalities must be reported to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations must be reported within 24 hours.

A roster of and records pertaining to employee vaccination status must be maintained by employers as confidential medical records and must be retained for the period of time the ETS is in effect. Acceptable proof of vaccination status includes:

• The record of immunization from a health care provider or pharmacy.
• A copy of the COVID-19 Vaccination Record Card.
• 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).
• A signed and dated employee attestation is acceptable in instances when an employee is unable to produce proof of vaccination.

Employers must make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.

Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.