The Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued its long-awaited emergency temporary standard requiring all employers with a total of 100 or more employees at any time to mandate vaccination and/or weekly COVID-19 testing (the “vaccination/testing ETS”). As expected, the text of the vaccination/testing ETS requires that employees either become fully vaccinated or produce a negative test result at least every seven days before going in to work. In addition, the vaccination/testing ETS requires masks or other face coverings for unvaccinated employees working indoors. The new measure also requires employers to provide up to four hours of paid leave, including travel time, to employees to get vaccinated and recover from any ill effects of the vaccine. If employees experience side effects from vaccination, employers must also provide reasonable time and paid sick leave for recovery from each dose. However, under the federal mandate, employers are not required to shoulder the costs of weekly testing of employees or of providing face coverings for employees.

Several notable exemptions exist, including:

  • Federal contractors and subcontractors who are already subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. Those requirements are covered by our recent update;
  • Employers with workers in healthcare settings who are previously covered by 29 CFR § 1910.502, the OSHA healthcare ETS issued in June 2021, covered by a previous update;
  • Remote workers; and
  • Workers who work exclusively outside.

Further, the vaccination/testing ETS allows for medical and religious accommodations but does not set forth any standards for processing those requests. Rather, it refers employers to the Equal Employment Opportunity Commission’s resources for reasonable accommodations provisions under the Americans with Disabilities Act and Title VII. The vaccination/testing ETS imposes several key 30-day and 60-day deadlines, which flow from the expected November 5, 2021, Federal Register publication date. The first compliance deadline, for employers to provide time off for workers to get inoculated and ensure that unvaccinated employees are wearing masks, is presumably December 5. By January 4, 2022, employees are expected to be fully vaccinated or submit to testing. To meet this deadline, employees will need to begin receiving their first shot as early as November 23, 2021. Of course, these deadlines apply only to states regulated by federal OSHA. States with their own plans are allowed an additional 30 days to adopt regulations identical to or more stringent than the vaccination/testing ETS.

Recordkeeping obligations are detailed and require careful compliance measures, as employers will need to obtain, verify, and maintain records documenting the vaccination status of their employees. These records must be treated as employee medical records under 29 CFR § 1910.1020 and preserved while the vaccination/testing ETS remains in effect. Employers who were collecting and maintaining records of vaccination status documentation prior to the effective date of the vaccination/testing ETS appear to be exempt from the new recordkeeping requirements for each employee whose fully vaccinated status has been ascertained and recorded prior to the effective date, November 5, 2021.

Acceptable forms of documentation or tracking of employee vaccination status include the standard COVID-19 Vaccination Record Card as well as other documented medical proof that the employee has been vaccinated. The standard also allows self-attestation. If unable to produce acceptable proof of vaccination, an employee may also provide a signed and dated statement attesting (1) to their vaccination status as either fully vaccinated or partially vaccinated, or (2) that they have lost and are otherwise unable to produce the required proof, which statement includes the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”

If an employer is offering testing as an alternative to vaccination, COVID-19 tests allowed under the standard include tests that have been approved by federal authorities to detect current infection with SARS-CoV-2 virus. The COVID-19 test may be self-administered or self-read, but not both, unless observed by the employer or an authorized telehealth proctor. COVID-19 tests satisfying the requirements of the standard include tests with home or on-site collected specimens that are processed by a laboratory, proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.

The vaccination/testing ETS also contains requirements for employee notification, removal of employees who have a positive COVID-19 test from the workplace, and the necessary responses to documentation requests from employees, employee representatives, and OSHA.

We expect several legal challenges to this federal vaccine and testing mandate, which will likely argue, among other claims, that OSHA does not have authority to issue the ETS and that the substantive requirements are not legally appropriate. Nevertheless, employers subject to the vaccination/testing ETS face substantial compliance burdens and should not delay in coming into compliance with the standard. Consult with experienced counsel to develop a plan to best respond to implementation requirements of the vaccination/testing ETS.