On Nov. 5, 2021, the Occupational Safety and Health Administration (OSHA) published its new Emergency Temporary Standard (ETS) mandating that employers with 100 or more employees require all employees to get fully vaccinated against COVID-19 or be required to wear a face covering and undergo weekly testing. Below is a summary of the ETS requirements as well as the Frequently Asked Questions (FAQ) guidance issued by OSHA. Please review the rule carefully – provisions in the ETS start on page 61551. More information is available here.

Employers and Employees Covered by the ETS

The ETS will apply to employers with a total of 100 or more employees at any time the standard is in effect. The regulation does not include definitions of the types of employers covered, but uses plain inclusive language.

How to count staff:

Full-time, part-time, temporary, and seasonal employees employed directly by the employer should be counted toward the total. Independent contractors and employees of a staffing agency placed in an employer’s workplace are not to be counted.

The vaccination and/or testing requirements under the ETS do not apply to employees who:

• work fully remotely;
• work exclusively outdoors; or
• do not report to a workplace where other individuals (i.e., co-workers or customers) are present. 

However, such employees are to be counted toward the 100-employee threshold for employer coverage. 

Applicability of the ETS

The ETS also does not apply to health care workplaces subject to the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule mandating vaccination of staff, or those already subject to the OSHA Healthcare ETS issued in June 2021 due to expire in December, and workplaces subject to the Executive Order applying to federal contractors.

LeadingAge National has confirmed that long term care providers delivering services across the continuum with settings or services not subject to the CMS Interim Final Rule or the June OSHA ETS will need to comply with the new OSHA ETS if they employ 100+ employees.

Effective Dates and Compliance Timeline

The ETS became effective when it was published in the Federal Register on Nov. 5, 2021 and will remain in effect for six months, or until OSHA finds that a grave danger from the virus no longer exists.

Under the language of the ETS, employers must comply with all requirements by Dec. 6, 2021, except that COVID-19 testing of unvaccinated or non-fully vaccinated employees must begin by Jan. 4, 2022.

Legal Status of the Regulation

After OSHA’s issuance of its ETS, the U.S. Court of Appeals for the Fifth Circuit issued a temporary halt to the regulation pending review in light of petitions stating that the regulation raises “grave statutory and constitutional issues.” LeadingAge NY will keep members updated on further legal developments regarding the regulation.

Proof of Vaccination

Employers are required to:

• determine the vaccination status of each employee;
• maintain a record of each employee’s vaccination status;
• maintain proof of vaccination for each employee;
• maintain a roster of each employee’s vaccination status, including full or partial vaccination status, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status.

Records and rosters must be maintained in accordance with OSHA’s medical documentation requirements for as long as the ETS remains in effect.

Acceptable proof of vaccination status includes:

• A record of immunization from a health care provider or pharmacy;
• A copy of the COVID-19 Vaccination Record Card;
• A copy of medical records documenting the vaccination;
• A copy of immunization records from a public health, state, or tribal immunization information system;
• A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) that administered the vaccine. 

For members who may have implemented a vaccine mandate already, if prior to the effective date of the ETS, an employer collected an employee’s vaccination status through a different form of proof and retained documentation of it, the employer is exempt from requiring the above forms of proof for that particular employee.

Mandatory Vaccination Policies

The ETS requires covered employers to establish, implement, and enforce:

1. a written mandatory vaccination policy for all employees (including mandatory vaccination for new employees “as soon as practicable”); or
2. a policy that allows employees to choose either full vaccination or proof of regular testing for COVID-19 and wearing a face covering at nearly all times in the workplace. 

Establishing policies and procedures is required by Dec. 6^th. Booster shots are not included in the definition of fully vaccinated.

Testing Out and Face Covering Requirements

Employers who maintain a policy allowing employees to work unvaccinated, or not fully vaccinated, in workplaces where others are present (such as co-workers or customers) must ensure that each employee who is not fully vaccinated meets certain COVID-19 testing and masking requirements.

Regular Testing

Under the ETS, unvaccinated employees reporting to work at least once every seven days must provide the employer with weekly COVID-19 test results, not to exceed seven days between tests. Employees who report to work after a period of seven or more days away from the workplace (for example, after a period of teleworking) must be tested within seven days prior to returning to the workplace and provide documentation of that test result to the employer upon return to the workplace.

Employees with COVID-19 are not required to undergo COVID-19 testing for 90 days following the date of a positive test or diagnosis. They may resume work after return-to-work criteria are fulfilled.

The ETS requires employers to maintain a record of each test result provided by the employee under this policy or obtained during tests conducted by the employer. If documentation of a COVID-19 test result is not provided as required, employers must keep the employee removed from the workplace until a negative test result is provided.

The ETS does not require employers to pay for costs associated with COVID-19 testing for employees who are not fully vaccinated, though it acknowledges that employers may be required to cover these costs by other laws, regulations, or collective bargaining agreements.

Mandatory Face Coverings

The ETS requires employers to ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes. Exceptions to this requirement include:

• When an employee is alone in a room with floor to ceiling walls and a closed door;
• For a limited time while the employee is eating or drinking at the workplace or for safety or security identification purposes;
• When an employee is wearing a respirator or face mask (both as defined in the ETS); and
• Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would exclude compliance (e.g., when it is important to see the employee’s mouth for reasons related to their job duties or for safety reasons).

Paid Time for Vaccination

Employers must provide a reasonable amount of time for each employee to acquire their primary vaccination dose(s), up to four hours of which per dose must be paid time if the vaccine is being received during working hours.

Employers must also provide “reasonable time” and paid sick leave to recover from side effects experienced following any primary vaccination.

Notification of Positive COVID-19 Test

Regardless of employee vaccination status, employers covered under the ETS must require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19. The employee must be immediately removed from the workplace and kept away from the workplace until the employee:

1. receives a negative COVID-19 nucleic acid amplification test (NAAT) following a positive COVID-19 antigen test result;
2. meets the return-to-work criteria in the Centers for Disease Control and Prevention's (CDC) Isolation Guidance; or
3. receives a recommendation to return to work from a licensed health care provider.

Employee Notice Requirements

Covered employers are required to inform employees about the requirements of the ETS and any employer policies or procedures and provide them with the CDC’s "Key Things to Know About COVID-19 Vaccines" guidance. 

Employees must also be informed of the prohibitions against employers from discharging or discriminating against employees for reporting work-related injuries or illness, exercising their rights under the OSH Act, and retaliating against any employee for filing a workplace safety complaint. Employers are also required to inform each employee of 18 § U.S.C. 1001 and section 17(g) of the OSH Act, which provide criminal penalties for knowingly supplying false statements or documentation. 

Availability and Reporting of Records

The ETS also includes requirements that employers make certain records promptly available to employees as well as to OSHA. Specifically:

The ETS requires employers to report work-related COVID-19 fatalities to OSHA within eight hours of learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

Employers must also provide to OSHA: (i) within four business hours of a request, the employer’s written policy required by the ETS and the aggregate number of fully vaccinated employees at the workplace, along with the total number of employees at the workplace; and (ii) by the end of the next business day after a request, all other records and other documents required to be maintained by the ETS.

It also requires employers to make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace, along with the total number of employees at that workplace. 

Contact: Meg Everett, meverett@leadingageny.org, 518-929-9342