OSHA Vaccine Emergency Temporary Standard FAQs - For Employers

Federal workplace safety officials just released the mandate-or-test workplace vaccine emergency rule, and employers are sure to have questions. The Emergency Temporary Standard (ETS) developed by the Occupational Safety and Health Administration (OSHA) will require all covered employers with 100 or more employees to either mandate their workforce receive the vaccination against COVID-19 or test them weekly to ensure they are not infected. This is a comprehensive series of Frequently Asked Questions about the ETS – released November 4, 2021, and with an effective date of November 5, 2021 – that will enable you to expertly navigate this new requirement.

The Basics

What is an ETS?

The OSH Act permits the agency to issue an Emergency Temporary Standard (ETS) it can enforce immediately if it arrives at the conclusion that a “grave danger” to worker safety exists. For this reason, the rule did not go through the typical notice-and-comment period that federal regulations usually follow.

What does the ETS require?

Generally, OSHA’s ETS requires private employers with more than 100 employees to either mandate covered employees be fully vaccinated against COVID-19 or require covered employees that are not fully vaccinated to test for COVID-19 at least weekly and wear a face covering.

As part of OSHA’s ETS, employers must also:

• Establish, implement, and enforce a written policy on vaccines, testing, and face coverings.
• Provide certain information to employees on vaccines and the requirements of the ETS.
• Provide paid time off to employees to obtain the vaccine and reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination series dose to each employee for each dose.
• Obtain and maintain records and roster of employee vaccination status.
• Comply with certain notice requirements when there is a positive COVID-19 case and reporting to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.

What are the ramifications for non-compliance?

Covered employers who ignore the ETS while it is in effect could face OSHA citations and penalties of up to $13,653 per violation, and additional citations or penalties as determined by OSHA or state OSHA for willful or egregious failures to comply. This means a covered employer could face a penalty of that amount for each facility, area within a facility, or each employee within a facility. In addition to OSHA citations and penalties, covered employers may face potential exposure for individual whistleblower, retaliation, negligence, and other claims potentially asserted by employees.

How long will the ETS be in place?

The ETS takes effect on November 5, 2021. Enforcement begins December 5, 2021, for all portions of the ETS other than testing and vaccination compliance date, which starts January 4, 2022.

The ETS can only remain in place for six months. After that time, it must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process involving a typical notice-and- comment period during that six-month period.

If an employer has implemented a mandatory vaccine policy that is more restrictive than the ETS, is that sufficient to comply?

Generally, yes. You should ensure that you meet all the requirements of the ETS including:

• Establishing, implementing, and enforcing a written policy on vaccines, testing, and face coverings.
• Providing certain information to employees on vaccines and the requirements of the ETS.
• Providing paid time off to employees to obtain the vaccine and reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination series dose to each employee for each dose.
• Obtaining and maintaining records and a roster of employee vaccination status.
• Complying with certain notice requirements when there is a positive COVID-19 case and reporting to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.

Download this SSG Compliance Advisor to get the answers to this comprehensive series of FAQs about the ETS:

Timing and State-by-State Impact

• When will the ETS take effect?
• What if we have operations in multiple states?
• What if we operate in a state (like Texas) that “banned” vaccine mandates?

Coverage

• Which employers are covered by the ETS?
• Why did OSHA pick 100 or more employees as the threshold?
• How do we determine whether we have 100 or more employees? 
• What about joint employment, related entities under an ownership umbrella, or franchise operations?
• What about when multiple, unrelated employers all have employees at the same worksite?
• What about a change in the number of employees above or below 100?
• Are there any exceptions?
• Does the ETS apply to remote employees?
• Does the ETS apply to employees who work outside?
• Did OSHA provide any examples of employers that fall above or below the 100-employee threshold?

Certification and Recordkeeping

• Will we be required to collect proof of vaccination?
• What recordkeeping obligations coincide with collecting vaccination certification?
• What best practices are recommended for proving vaccination status?

Medical and Religious Accommodations

• If we mandate the vaccine as the government requires, do we have to provide exceptions for any employees?
• What should we do if someone presents us with a medical accommodation request?
• What should we do if someone presents us with a religious accommodation request?
• If an employee is exempt from the vaccine due to a reasonable accommodation related to a disability or sincerely held religious belief, do they still need to be tested weekly?

Testing Option

• What do we need to generally know if we are considering the testing option?
• Can we test more often than seven days?
• What if an unvaccinated employee has had a prior COVID-19 infection?
• When must we comply with the weekly testing requirement?
• What about remote workers?
• How long do unvaccinated employees have to submit to weekly COVID-19 testing?
• What kind of tests will suffice?
• What are the limitations to at-home tests?
• What is pool testing?
• Should we administer OTC tests?
• What if an employee says they need a medical or religious accommodation preventing them from being tested weekly?
• Who pays for the tests?
• Are employers required to pay for the time employees spend testing?
• What if there is a shortage of testing supplies or the lab an employer uses is backed up?

Miscellaneous

• Do we still have to report COVID-19 fatalities and hospitalizations?
• What do unionized employers need to know?
• What if we are a federal contractor?
• What if some of our workforce is covered by the Federal Contractor Mandate and some of our workforce is not covered by the Federal Contractor Mandate?
• If our employees are subject to the Federal Contractor Mandate, will we be required to test employees who receive an approved exemption from the Federal Contractor Mandate?
• What if we are in the healthcare industry?

Conclusion

Legal challenges have already been filed against the ETS, and more are sure to come – the ETS has already been temporarily blocked by a court order until it can be reviewed by the federal court.

While the effective date may still be weeks away, you should begin preparing now by establishing policies for determining employees’ vaccination status and procedures for tracking weekly test results. You should also prepare for the possibility that employees may refuse to comply with the requirements of the ETS and begin planning and appropriate response – which would include terminating their employment.

DOWNLOAD THIS ADVISOR to get answers to these questions, as well as a five-step action plan that you can implement immediately to put yourself in the best position to comply with the ETS.