OSHA issues COVID-19 vaccine mandate guidance

The Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) in response to President Biden’s September Path Out of the Pandemic COVID-19 action plan calling for, among other things, a vaccine mandate for private employers. The ETS mandates COVID-19 vaccinations or at least weekly testing for workers at companies in the United States with 100 or more employees by January 4, 2022.

OSHA has also established a webpage for these rules that includes various fact sheets, summaries and FAQs. A high-level checklist is included below to assist employers in developing a plan to comply with the ETS.

OSHA anticipates that the ETS will be in effect for at least six months, although it will continue to monitor trends in COVID-19 infections and deaths to help determine when the ETS can be terminated.

COVID-19 Vaccination and Testing ETS

The ETS covers the specific topics outlined below.

Employers covered by the ETS

The ETS generally applies to employers in all workplaces that are under OSHA’s authority and jurisdiction. Within these workplaces, all employers that have a total of at least 100 employees on a firm- or corporate-wide basis, at any time the ETS is in effect, are covered. In other words, once an employer reaches the 100-employee threshold, it becomes subject to the ETS and remains so even if its total employee count subsequently drops below 100.

Workplaces not covered by the ETS

The ETS does not apply (1) to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, or (2) in settings where employees provide healthcare services or healthcare support services when subject to the requirements of the healthcare ETS or the new Centers for Medicare & Medicaid Services (CMS) rules (discussed further below).

COVID-19 vaccination

• General requirements/deadlines. Covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, except employers that instead adopt a policy requiring employees to elect either to get fully vaccinated or to undergo regular COVID-19 testing and wear a face covering at the workplace. Employees of covered employers must be fully vaccinated by January 4, 2022. All unvaccinated workers must begin wearing masks by December 5, 2021, and provide a negative COVID-19 test on a weekly basis beginning January 4, 2022.
• Mandatory vaccination versus regular testing policies. Employers subject to the ETS that do not want to offer employees a testing option are required to establish a “mandatory vaccination policy.” A mandatory vaccination policy is a written employer policy requiring each employee to be fully vaccinated. Such a policy must require vaccination of all employees, other than those employees who fall into one of three categories:
  1. Those for whom a vaccine is medically contraindicated
  2. Those for whom medical necessity requires a delay in vaccination
  3. Those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices or observances that conflict with the vaccination requirement

  Regardless of which compliance option is chosen by the employer, the written policy should be made readily accessible to all employees through the employer’s normal methods of distributing information to employees. Employers are not required to submit their written policy to OSHA unless requested. Template policies that employers may use and customize can be found on OSHA’s ETS webpage.

COVID-19 testing frequency/cost

If an employer has unvaccinated workers in the workplace, those employees must have weekly tests (at least every seven days) until they are fully vaccinated or the ETS is no longer in effect. The ETS does not require employers to pay for any costs associated with testing; however, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. Otherwise, the agency leaves the decision regarding who pays for the testing to the employer.

Paid leave

The ETS requires employers to support COVID-19 vaccination by providing each employee with (1) reasonable time to receive each primary vaccination dose¹ during work hours, and (2) reasonable time and paid sick leave to recover from vaccine side effects.

• Leave policies for employees to receive vaccination. Employers are required to provide reasonable time to each employee during work hours to receive each of their primary vaccination dose(s), including up to four hours of paid time off, at the employee’s regular rate of pay. The maximum of four hours of paid time off that employers must provide for the administration of each primary vaccination dose cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave.
• Leave policies for employees to recover from vaccine side effects. An employer may require an employee to use accrued paid sick leave when recovering from side effects experienced following a primary vaccination dose. Additionally, if an employer does not specify between different types of leave (e.g., paid time off), then the employer may require employees to use that leave when recovering from primary vaccination dose side effects. If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering. The employer cannot require an employee to go into a negative balance for paid sick leave if the employee does not have accrued paid sick leave.

Additional requirements

The ETS also requires employers to do the following:

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee's vaccination status.
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove those employees from the workplace, regardless of vaccination status, and must not allow them to return to work until they meet certain criteria; however, the removal of an unvaccinated employee if he or she has been exposed to a COVID-19 positive person is not required.
• Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes. The masking requirement applies to unvaccinated employees even though the employee is subject to weekly testing.

Employees working remotely

The requirements of the ETS do not apply (1) to employees who do not report to a workplace where other individuals, such as coworkers or customers, are present; (2) to employees while they are working from home; or (3) to employees who work exclusively outdoors.

State OSHA plans

The 22 states with their own state OSHA plans covering private-sector employees will have 30 days to adopt OSHA's ETS or align with their own similar standards. When federal OSHA issues an ETS, state OSHA plans must either amend their standards to be identical or “at least as effective as” the new ETS or show that their existing state standards are “at least as effective” as the new federal standard.

State laws prohibiting vaccine mandates

The ETS states that it preempts states (and political subdivisions of states) from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings and testing for COVID-19, except under the authority of a federally approved state OSHA plan.

Other issues to consider

• Enforcement. According to OSHA’s 2021 Annual Adjustments to Civil Penalties memorandum, fines for violating the ETS could start at $13,653 per violation and go as high as $136,532 per violation (if employers are found to be willfully noncompliant or repeat offenders).
• Legal challenges. Legal challenges to the ETS vaccine mandate are expected shortly, particularly from attorneys general in states that oppose vaccination requirements.
• Interaction with other existing federal vaccine mandates. OSHA's ETS will not be applied to workplaces covered by the federal contractor vaccine requirement or the vaccination mandate from CMS for healthcare workers at facilities that participate in Medicare and Medicaid programs or employers subject to OSHA’s healthcare ETS; however, it is important to note that the deadline for the vaccine mandate for federal contractors (and subcontractors) has been pushed back to January 4, 2022 (to align with the OSHA ETS compliance deadline). The deadline for employees of federal contractors to complete their vaccination or claim an exemption was initially December 8, 2021.² Note that healthcare systems and facilities subject to the CMS vaccine mandate rules will not have a testing option as an alternative to a vaccine but, like other businesses, will have to review medical and religious exemption requests. These rules also require employees to be fully vaccinated by January 4, 2022.

OSHA COVID-19 Vaccine ETS: Employer checklist

• Develop, implement and enforce an employer policy on COVID-19 vaccination (templates are available on the OSHA website).
• Determine employees’ COVID-19 vaccination status and maintain records.
• Provide paid leave for COVID-19 vaccination and recovery.
• Disclose required information to employees (including how to notify the employer of a positive COVID-19 case).
• Require face coverings for unvaccinated employees in the workplace.
• Set up COVID-19 testing for unvaccinated employees (and determine who will pay).
• Make COVID-19 vaccine and testing records available to employees and their authorized representatives (including the aggregate number of vaccinated and unvaccinated employees).
• Report COVID-19 fatalities and hospitalizations, if any, to OSHA.

Footnotes

¹ “Primary vaccination dose” means receiving the vaccines currently authorized by the Food and Drug Administration: Johnson & Johnson (a single-dose primary vaccination), and Pfizer-BioNTech and Moderna (a two-dose primary vaccination series). This also includes the mixing of one Pfizer-BioNTech dose and one Moderna dose.

² See “COVID-19 vaccine guidance issued for federal contractors, subcontractors,” Insider, October 2021.