OSHA: Private Businesses Must Ensure Employees Are Fully Vaccinated by January 4
Author: Emily Scace, Brightmine Legal Editor
November 4, 2021
Citing the "grave danger" posed by occupational exposure to the coronavirus, the Occupational Safety and Health Administration (OSHA) today released the details of its long-awaited Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to be fully vaccinated against COVID-19 or face weekly testing. The ETS is estimated to cover 84 million employees nationwide.
Employers with a total of 100 or more employees at any time the ETS is in effect - except for healthcare employers covered under the specific ETS for that industry and workplaces covered under requirements for federal employees and contractors - must establish, implement and enforce a written policy setting out COVID-19 vaccination requirements. The policy must either mandate vaccination for all employees or offer a choice between vaccination and weekly testing, with face coverings required for unvaccinated employees.
Employees who are unable to be vaccinated and/or wear a face covering as a result of a disability or a sincerely held religious belief may be entitled to reasonable accommodations, subject to the requirements of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.
The threshold of 100 employees applies companywide rather than at the individual location level and includes part-time as well time as full-time employees. Independent contractors do not count towards the total number of employees.
The ETS does not apply to employees of covered employers:
- Who do not report to a workplace where other individuals are present;
- While working from home; or
- Who work exclusively outdoors.
However, although employees working from home and working exclusively outdoors are not required to adhere to the vaccination and testing requirements under the ETS, they are included in an employer's total number of employees for purposes of determining whether the employer meets the 100-employee threshold.
Vaccination Support
Under the ETS, covered employers must provide reasonable paid time during work hours for employees to receive the COVID-19 vaccine, up to four hours per vaccination dose, as well as paid sick time to recover from any side effects.
Employers are not required to pay for testing for employees who are not fully vaccinated. Employers are not prohibited from paying for testing, however, and some may be required to do so under the terms of a collective bargaining agreement or another law or regulation.
Testing and Face Coverings
Employees who are not fully vaccinated must be tested for COVID-19 at least once every seven days and provide documentation of the test results to the employer. If an employee does not report to a workplace where other individuals are present for a period of seven or more days - for example, while working from home temporarily - the individual must be tested within seven days prior to returning to the workplace.
If an unvaccinated employee fails to provide documentation of a COVID-19 test result as required, the employee must be removed from the workplace until a test result is provided.
Employees who are not fully vaccinated must wear a face covering indoors and when occupying a vehicle with another person for work purposes, except in the following situations:
- When alone in a room with floor-to-ceiling walls and a closed door;
- For a limited time while eating or drinking or for identification purposes to comply with safety and security requirements;
- When wearing a respirator or facemask; or
- If the employer can demonstrate that the use of face coverings is infeasible or creates a greater hazard.
Employers are neither required to nor prohibited from paying for costs associated with face coverings under the ETS. As with testing, employers may be required to pay for face coverings under the terms of a collective bargaining agreement or another law or regulation.
Requirements for Vaccinated Employees
In order to be exempt from the weekly testing requirements, employees must be fully vaccinated, which occurs two weeks after completing the vaccination schedule for the particular vaccine. In other words, employees are considered fully vaccinated two weeks after receiving the second dose of a Pfizer or Moderna vaccine or two weeks after receiving the single-dose Johnson & Johnson vaccine. Booster shots are not required for an individual to be considered fully vaccinated.
Covered employers must require vaccinated employees to submit proof of their vaccination status. Acceptable forms of proof include:
- Immunization records from a health care provider or pharmacy;
- A copy of the COVID-19 Vaccination Record Card;
- A copy of medical records documenting the vaccination; or
- Any other official documentation that contains the type of vaccine administered, dates of administration, and the name of the health care professional or clinic site administering the vaccine.
If an employee fails to provide acceptable proof of vaccination, the individual must be treated as not fully vaccinated and must be subjected to the testing and masking requirements for unvaccinated employees.
Compliance Deadlines
Testing requirements for unvaccinated employees begin on January 4, 2022. By December 5, 2021, employers must be in compliance with all other requirements of the standard, such as the written policy and face covering requirements for unvaccinated workers.
State Application and Conflicts
In recent months, a number of states - including Montana and Texas - have enacted laws prohibiting or limiting employers' authority to require COVID-19 vaccination for employees. However, OSHA maintains that the ETS preempts all contrary state and local requirements.
In the roughly half of states that operate their own approved occupational safety and health regulatory programs (known as state-plan states), the state plan must adopt the ETS or a standard that is at least equally protective within 30 days of the federal rule's publication. State plans must notify OSHA of the action they intend to take within 15 days. State-plan states include California, Washington, Oregon and Virginia.
