OSHA COVID-19 Vaccine and Testing Rules: Resources and FAQs
Throughout COVID-19, Varnum’s Labor and Employment Team has helped employers across the country navigate emergent laws and regulations that impact their workforce and operations, including with respect to vaccination mandates.
We stand ready to assist you with this new rule and related workplace adjustments. If you have immediate questions, please contact your Varnum attorney.
Webinar Recording
Webinar Takeaways
- Several legal challenges have been filed regarding the OSHA Emergency Temporary Standard (ETS). Whether and how this will impact employer compliance deadlines is not clear at this time. Employers are wise to become familiar with the ETS and consider how they can be prepared to comply if the ETS is upheld.
- The ETS is effective as of November 5, 2021. Employers must begin complying with the ETS on December 6, 2021, presuming there is no stay in effect at that time. All compliance requirements except testing will become effective as of that date.
- All covered employers must establish a written policy by December 6 for either mandatory vaccination or required testing and masking for unvaccinated employees. Covered employers must ensure that any covered employee, not yet fully vaccinated by January 4, 2022, produce a verified negative test, on at least a weekly basis in most cases.
- All covered employers must ensure that unvaccinated covered employees wear a face mask while in the workplace in addition to compliance with the testing requirements.
- The ETS covers all employers with 100 or more employees. Part-time employees and remote workers are included in the number of employees for the purpose of determining coverage, but temporary workers and independent contractors are not.
- To meet the 100-employee threshold, employers must include all US employees across all locations, regardless of vaccination status or where they perform their work.
- The ETS exempts certain employees who perform work “exclusively outdoors” or who work remotely from compliance with the employers policy either requiring vaccination for all onsite employees or masking and testing requirements for non-vaccinated employees. However, these employees will count toward the 100-employee threshold.
- The ETS does not apply to workplaces that are already covered by the federal contractor Safer Federal Workforce rule, by OSHA’s existing ETS applicable to certain healthcare providers or to workplaces governed by a separate and more stringent CMS rule issued the same day as the OSHA ETS.
- Covered employers must provide reasonable time to each employee during work hours to receive their primary vaccination dose(s). Employers must provide up to four hours of paid time to each employee, at the employee’s regular rate of pay, for each dose of the vaccine. This leave cannot be offset by other accrued leave like sick leave or vacation leave.
- Recordkeeping, reporting and notice obligations, as well as rules for excluding COVID-19 positive workers from the workplace also apply.
- The penalty amounts for noncompliance with the ETS will be consistent with the penalties already in place for other OSHA violations.
Frequently Asked Questions
Q: How do I know if I qualify as having 100 or more employees?
A: Currently, the date on which employees are counted for the application of the ETS is November 5, 2021. If an employer has 100 or more employees on November 5, the ETS applies for the entire duration even if the employer falls beneath the 100-employee threshold at any point. If an employer has under 100 employees as of that date, the ETS does not apply unless there is an increase in the employee count and the employer hits the 100-employee threshold.
Q: If I have less than 100 employees can I still require vaccines?
A: Yes, private employers may require employee vaccination, so long as the employer provides exemptions for disability/medical reasons and sincerely held religious beliefs as required by law.
Q: What if an employee has only received one of two shots for the vaccine by December 6?
A: That employee would not be fully vaccinated under the terms of the ETS (unless he/she received the one-shot Johnson and Johnson vaccine), so the employee would need to comply with rules for non-vaccinated employees depending on the employer’s policy.
Q: What type of vaccination proof is required? Or is just a request for vaccination status compliant?
A: Employers will need to either obtain a copy of the vaccination record, the CDC vaccination card, or a formal “employee attestation” of vaccination compliant with the ETS. A valid attestation must include the following: (1) an attestation to their vaccination status; (2) an attestation that they lost or are otherwise unable to provide proof of their vaccination status; and (3) a declaration that the employee’s attestation about their vaccination status is “true and accurate” and that they understand that knowingly providing false information regarding their vaccination status may subject them to criminal penalties. Employee attestations should also include 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).
Q: Can the weekly test be a rapid test or an “at home” test?
A: Yes, however tests that are both self-administered and self-read must be observed by the employer or an authorized telehealth proctor.
Q: Are there requirements specific to the type of mask that unvaccinated employees must wear (such as medical vs. fabric)?
A: No. Face coverings can be manufactured or homemade, and they can incorporate a variety of designs, structures, and materials. Cloth masks, manufactured masks, or homemade masks are all acceptable as long as they completely cover the nose and mouth.
Please contact your Varnum attorney, or any member of the firm’s labor and employment practice team, with any additional questions about how the ETS will affect your workforce.
