Brady Collins
On November 5, 2021, the U.S. Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) requiring employers with 100 or more employees to ensure their workers are either fully vaccinated or tested for COVID-19 weekly. The ETS establishes minimum requirements for private sector employers, including how employee count is determined, which employees the mandate applies to, and the vaccination/testing requirement. The ETS does not apply to employees who work exclusively from home or outdoors. Employers must collect and retain documentation of vaccination status for all covered employees, and employees who are not fully vaccinated must submit weekly tests and wear face coverings indoors. The ETS was withdrawn on January 26, 2022, following the U.S. Supreme Court's opinion, meaning private employers are not required to ensure their workers are vaccinated or tested under federal law. However, certain employers may still be subject to similar state laws.
| Characteristics | Values |
|---|---|
| OSHA ETS applicability to fully vaccinated employees | OSHA requires employers with 100 or more employees to ensure their workers are either fully vaccinated or tested for COVID-19 weekly. |
| Employers' obligations | Employers must collect and retain documentation of employees' vaccination status. They are not obligated to require employees to submit proof of vaccination. |
| Employees' obligations | Employees must submit proof of vaccination upon request by their employers. Employees who are not fully vaccinated must submit weekly COVID-19 tests and wear face coverings indoors. |
| Exemptions | Employees with disabilities and sincerely held religious beliefs are eligible for exemption from the workplace vaccination mandate. |
| Record maintenance | Employers must maintain a roster of each employee's vaccination status and test results. These records are considered employee medical records and must be maintained in accordance with OSHA's requirements. |
| Enforcement | Employers that fail to comply with OSHA's ETS may be subject to fines. |
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What You'll Learn
- Employers must collect and retain documentation of vaccination status
- Employees who are not vaccinated must submit weekly COVID-19 tests
- Employers are not required to pay for costs associated with weekly testing
- Employees with disabilities or religious beliefs are eligible for exemption
- Employers must provide paid time off for vaccination and recovery
Employers must collect and retain documentation of vaccination status
Employers must collect and retain documentation of each employee's vaccination status. This is considered to be an employee medical record and must be maintained as such in accordance with OSHA's requirements for employee exposure and medical records. These records must be retained for the length of time necessary to establish compliance with the regulation. This means that the records must be maintained and preserved only while the ETS is in effect and are not subject to the longer retention requirements applicable to other types of medical records.
Covered employers must collect and retain documentation of vaccination status for all covered employees. This documentation can be collected either physically or electronically. Employers may require their employees to submit their vaccination records, but they are not obligated to do so. Employees with disabilities and sincerely held religious beliefs are eligible for an exemption from the workplace vaccination mandate and may wish to omit any medical information from such documentation before submission.
Employers must provide their employees with reasonable time, up to four hours of paid time, for each vaccination dose and reasonable time and paid sick leave to recover from any side effects experienced from each dose. Employers are not required to pay for any costs associated with the required weekly testing for unvaccinated employees. Employees who test positive for COVID-19 must be removed from the workplace, and employers must report to OSHA any incidences of COVID-19 hospitalizations or fatalities.
Employers that fail to comply with the rule may be subject to fines. Employers who have already implemented policies requiring that their employees be vaccinated or mandating testing should review those policies to ensure they comply with the requirements of the ETS.
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Employees who are not vaccinated must submit weekly COVID-19 tests
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) that requires employers with 100 or more employees to establish COVID-19 vaccination requirements for their employees. The ETS applies to all employers with a total of 100 or more employees, including part-time, temporary, seasonal, and remote employees. However, it does not apply to independent contractors or employees who work exclusively from home or outdoors.
Under the ETS, covered employers must implement policies and procedures to ensure that all employees are fully vaccinated or submit weekly negative COVID-19 test results. Employers are not obligated to require employees to submit proof of vaccination, but they must collect and retain documentation of vaccination status for all covered employees. Employees who do not provide acceptable proof of vaccination must be treated as not fully vaccinated and must follow the testing and face-covering requirements.
The ETS requires employers to provide reasonable time, up to four hours of paid time, for employees to receive each vaccination dose and paid sick leave for any side effects. Employers are not required to pay for the costs associated with the required weekly testing for unvaccinated employees. However, they may offer onsite testing or flexible time off for employees to take the test during work hours. Unvaccinated employees must submit their test results before returning to work, and employers must ensure confidentiality and safe data handling of testing information.
It's important to note that certain employees may be exempt from the vaccination requirement due to medical contraindications, delays in vaccination due to medical necessity, or sincerely held religious beliefs. These employees may be entitled to reasonable accommodations under the Americans with Disabilities Act (ADA) or other applicable laws. Employers must maintain a roster of each employee's vaccination status and preserve acceptable proof of vaccination for those who are fully or partially vaccinated. These records are considered employee medical records and must be maintained in accordance with OSHA's requirements.
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Employers are not required to pay for costs associated with weekly testing
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) that requires employers with 100 or more employees to establish COVID-19 vaccination requirements for their employees. Under the ETS, covered employers must implement policies and procedures to ensure that all employees are fully vaccinated or submit weekly negative COVID-19 test results.
The ETS applies to employers with 100 or more employees at any time while the ETS is in effect. Part-time employees and offsite or remote employees count towards the 100-employee threshold, though fully remote employees are not required to be vaccinated or submit to weekly testing. The ETS does not apply to individual workplace locations. Instead, companies must look firm- or corporate-wide at all their U.S. workplaces to determine whether the ETS applies.
The ETS establishes minimum requirements that private sector employers must implement and fills in key details on the vaccine mandate, including how employee count is determined, which employees the mandate applies to, the vaccination/testing requirement, and documentation requirements. Employers may offer an onsite testing option or flexible time off to their employees to take the COVID-19 test during work hours.
It is important to note that as of January 26, 2022, the ETS has been withdrawn and is no longer enforceable under federal law. However, employers may still be subject to similar state laws that require vaccination or testing. Additionally, the ETS does not apply to federal contractor workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors, or to settings where employees provide healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS.
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Employees with disabilities or religious beliefs are eligible for exemption
The Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) on November 4 or 5, 2021, which requires employers with 100 or more employees to ensure their workers are either fully vaccinated or tested for COVID-19 weekly.
The ETS does not apply to employees who do not report to a workplace with other individuals, those who work exclusively from home, or those who work exclusively outdoors. However, an employee who works outdoors on some days and indoors on other days is not exempt from the requirements of this ETS.
The ETS acknowledges that employers will still have to consider requests for accommodations from employees with disabilities or sincerely held religious beliefs. If an employer mandates vaccinations for employees, and a disability, as defined by the Americans with Disabilities Act (ADA), prevents an employee from getting vaccinated, or it conflicts with their sincerely held religious beliefs, practices, or observances, the employee may be entitled to a reasonable accommodation under the ADA, Title VII of the Civil Rights Act of 1964, or applicable state law.
The EEOC provides guidance for determining when reasonable accommodations may be needed due to a disability or sincerely held belief. Employers may wish to instruct their employees to omit any medical information from documentation submitted to support disability or religious creed-related inquiries or medical examinations.
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Employers must provide paid time off for vaccination and recovery
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) that requires employers with 100 or more employees to establish COVID-19 vaccination requirements for their employees. Under the ETS, covered employers must implement policies and procedures to ensure that all employees are fully vaccinated or submit weekly negative COVID-19 test results.
The ETS establishes minimum requirements that private sector employers must implement, including how employee count is determined, which employees the mandate applies to, the vaccination/testing requirement, required paid time off for vaccination or sick leave relating to a vaccine, and documentation requirements. Employers must provide employees with reasonable time for each of their primary vaccination doses and provide up to four hours of paid time, including travel time, at the employee's regular rate of pay for this purpose.
In Washington, D.C., the Accrued Sick and Safe Leave Act of 2008 (ASSLA) was amended to provide paid time off for COVID-19 vaccinations and recovery. The new law requires D.C. employers to provide up to two hours of paid leave per injection of either the employee or a child under the age of 18 who lives with the employee. Employers must also provide vaccination recovery leave, consisting of up to eight hours of leave during the 24-hour period following the two-hour vaccination leave period.
In New York, Governor Cuomo announced that employers are required to provide paid time off to employees who are unable to work due to side effects from the COVID-19 vaccination. The New York State Department of Labor clarified that this is not a new leave mandate. Under the New York paid sick leave law that went into effect on January 1, 2021, employers with 5 or more employees are required to provide at least 40 hours of paid sick leave per calendar year.
It is important to note that the U.S. Supreme Court blocked the workplace vaccine mandates on January 13, 2022, and OSHA withdrew the ETS effective January 26, 2022. However, certain employers may still be subject to similar state laws that require vaccination or testing.
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Frequently asked questions
Yes, the ETS requires employers to ensure their employees are fully vaccinated. However, employees with disabilities and religious beliefs are eligible for an exemption from the workplace vaccination mandate.
Employers must implement policies and procedures to ensure that unvaccinated employees submit weekly negative COVID-19 test results. Employers may offer an onsite testing option or flexible time off for employees to take the test during work hours.
If an employee who is not fully vaccinated does not provide a negative COVID-19 test result, the employer must keep the employee removed from the workplace until they provide one.
