COVID-19 Vaccination and Testing ETS

By Charles P. Keller, Brian J. Mills, Jennifer R. Yee, and Craig J. O’Loughlin

Almost two months after President Biden’s announcement of his administration’s mandatory vaccination plan, yesterday, November 4, 2021, the federal Occupational Safety and Health Administration (“OSHA”) published its Emergency Temporary Standard (“ETS”).  The ETS becomes enforceable today, November 5, 2021.  Essentially, it requires all employers employing 100 or more employees to draft, adopt and implement a set of policies and procedures demonstrating how the employer intends to comply with the provisions of the ETS and then ultimately comply with those provisions in a time-prescribed manner. 

State-plan states (those states individually operating OSHA-approved workplace safety and health programs), including Arizona, California, Oregon, Nevada, Washington and Utah, have 15 days to notify federal OSHA of the action it plans to take regarding the federal OSHA ETS.  Such state OSHA jurisdictions have 30 days from the November 5, 2021 effective date to adopt the ETS or to choose to enact an alternative regulation that is “at least as effective as” the federal OSHA ETS. 

The ETS applies to all U.S. workplaces with 100 or more employees as of November 4, 2021.  It remains in effect for such employers even if the workforce drops below the 100-employee threshold.  Part-time, temporary, seasonal, and even employees working remotely who have intermittent contact with other employees or employees of other businesses are covered by this ETS.  Employees working exclusively from home or employees who work exclusively outdoors are excluded from the ETS requirements, although such employees still count toward that 100-employee threshold. 

While the ETS becomes effective today, employers in federal OSHA jurisdictions have some phase-in time to come into compliance with its requirements.  Employers have essentially two paths to comply with the ETS.  One option is to adopt a mandatory vaccination policy.  Such a policy must require the full vaccination of all employees on or before January 4, 2022.  After January 4, 2022, all new employees are required to be vaccinated as soon as practical.  Under this mandatory vaccination policy, employees with medical conditions or employees demonstrating a sincerely held religious belief may be entitled to reasonable accommodation.  Such employees qualifying for a medical or religious exemption would be required to participate in the weekly testing and to wear a face covering at all times in the workplace. 

The second compliance option requires the employer to establish a policy providing employees with the option of either selecting to become vaccinated or participate in the weekly testing.  Employees opting to be vaccinated must provide documented proof, whether physical or electronic, of such vaccination to their employer.  The employer is obligated to protect and maintain such vaccination records as medical records.  Any employees that select the vaccination option are entitled to up to four hours of paid time off during work hours, including travel time, to get vaccinated.  Such employees are also entitled to two days of personal or sick time to recover from the effects of any vaccination shot. Employees must be vaccinated on or before January 4, 2022 to avoid the weekly testing option described below.

Employees electing to remain unvaccinated will be required to submit to weekly testing.  According to the federal OSHA ETS, acceptable test devices must be a cleared, approved or authorized test methodology approved by the Food and Drug Administration to detect current infections with the SARS-CoV-2 virus, better known as a viral test.  Such tests must be administered according to the authorized instructions and must be observed by the employer and/or an authorized healthcare proctor.  Employees will be able to use over-the-counter COVID-19 tests that are self-administered and self-read only if such activities are observed by the employer or an authroized telehealth proctor.  Employers can also require employees who are submitting to this weekly test to pay for a portion or all of the cost associated with the testing, unless employees qualify for a medical or religious exemption, or the employer is restricted by statute or a collective bargaining agreement. 

Employers are required to maintain a record of each employee’s vaccination status, a roster of each employee’s vaccination status, and maintain a record of each test result provided by each employee.  The above documentation is considered a medical record and must be handled accordingly by the employer.

On or before December 5, 2021, employers must establish a written mandatory vaccination policy or, in the alternative, develop policies and procedures addressing the vaccinated versus unvaccinated employee methodology.  By the December 5 deadline, employers are required to ascertain each employee’s vaccination status, obtain proof of the vaccination of each employee, establish a roster of employees’ individual vaccination status, and ensure that unvaccinated employees wear appropriate face coverings during their workday.  Finally, on or before December 5, 2021, the employer must draft and implement a policy for providing information and training to employees about the federal OSHA ETS, the employer’s policy and procedures, vaccination benefits, vaccination effectiveness, and other ETS policies. 

Employers have until January 4, 2022 to develop a system to ensure that unvaccinated employees are tested for COVID-19 at least weekly or within seven days of returning to the workplace. 

All of the above obligations as well as timeframes set forth in the federal OSHA ETS could be curtailed, delayed, or enjoined (partially or completely) based on numerous legal challenges that are anticipated to be filed in the days and weeks following the enactment of the federal OSHA ETS and its provisions.  It is highly likely that such legal actions challenging the basis of the federal OSHA ETS will be filed as early as today.