OSHA Issues Emergency Temporary Standard on Vaccination and Testing

UPDATE: On Dec. 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the vaccination and testing emergency temporary standard. OSHA has stated that it will "exercise enforcement discretion with respect to the compliance dates" and will "not issue citations for noncompliance with any requirements of the ETS before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9," provided the employer "is exercising reasonable, good faith efforts to come into compliance with the standard."

• Read Q&A: Proactively Preparing for OSHA’s COVID-19 Emergency Temporary Standard

UPDATE: On Nov. 30, 2021, OSHA extended the comment period for the COVID-19 vaccination and testing emergency temporary standard (ETS) until Wednesday, Jan. 19, 2022. All comments must be submitted electronically to Docket No. OSHA-2021-007 at www.regulations.gov.

UPDATE: On Friday, Nov. 12, 2021, the U.S. Court of Appeals for the Fifth Circuit confirmed its stay on OSHA's emergency temporary standard (ETS) on COVID-19 vaccination and testing, ordering the agency to "take no steps to implement or enforce" the ETS "until further court order." As a result, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. This followed a ruling on Saturday, Nov. 6, 2021, issuing the initial stay. Several U.S. states have filed lawsuits to challenge the ETS as well. The agency is continuing to accept public comments on the ETS.

On Nov. 5, 2021, OSHA published an emergency temporary standard (ETS) on COVID-19 vaccination and testing. The ETS would establish binding requirements to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 in the workplace.

The ETS would cover private employers with 100 or more employees firm- or corporate-wide. According to OSHA, in states covered by a state plan, state- and local-government employers, as well as private employers with 100 or more employees will be covered by state occupational safety and health requirements.

The ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety; in settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS; workplaces with fewer than 100 employees in total; and public employers in states without State Plans. In addition, the ETS requirements would not apply to employees who do not report to a workplace where other individuals are present; employees while working from home; and employees who work exclusively outdoors.

Under the ETS, covered employers would be required to take several actions. These include:

• Develop, implement and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
• Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status and maintain a roster of each employee’s vaccination status.
• Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.
• Ensure 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).
• Ensure 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.
• 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.

The ETS would not require employers to pay for testing. However, employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements or other collectively negotiated agreements. Employers are also not required to pay for face coverings.

According to OSHA, approximately 39% of workers covered by this ETS are unvaccinated, which leaves them vulnerable to sickness, hospitalization and death. “While vaccination remains the most effective and efficient defense against COVID-19, this emergency temporary standard will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus,” says Jim Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health.

The ETS also served as a proposal for normal rulemaking for a final standard. OSHA is seeking comment on all aspects of this ETS and whether the agency should adopt it as a final standard. You can submit comments through Regulations.gov.

Find a fact sheet, FAQs and other compliance resource on the OSHA website.

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Throughout the prolonged pandemic, we have provided education for our members on the latest workplace safety and health guidance while helping safety professionals prepare for OSHA emergency temporary standards.