OSHA VACCINATION AND TESTING 

REQUIREMENTS FOR LARGE EMPLOYERS

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) will issue an Emergency Temporary Standard (ETS) for COVID-19 creating new workplace standards for employers with 100 or more employees (combined at all locations). The initial provisions of the ETS will take effect on December 5, 2021, with the remainder taking effect January 4, 2022.

          WHAT EMPLOYERS NEED TO DO BY DECEMBER 5, 2021

COVID-19 Vaccination Policy Required

Covered employers will be required to adopt one of the following COVID-19 policies.  Employers must adopt a Vaccination Policy and distribute the policy to all employees by December 5, 2021.

Option 1:

Mandate Covid-19 vaccination for all employees who report to an indoor workplace where other employees are present, subject to reasonable accommodation exemptions for medical reasons or sincerely held religious beliefs. If an employer chooses Option 1 and grants a reasonable accommodation exemption, the exempt employee must submit to weekly COVID-19 testing and wear a face mask when indoors or in a vehicle with other people.  The OSHA website has a sample policy here. 

Option 2:

Require all employees who are not fully vaccinated (2 weeks past final vaccine) to submit to weekly testing and where face masks when indoors or in a vehicle with other people.  The OSHA website has a sample policy here. 

Along with the policy, employers must distribute the CDC document "Key Things to Know About COVID-19 Vaccines"  and notification that it is illegal for a person to knowingly provide false documentation about his or her vaccination status. 

Although employers are not obligated to pay for employee COVID tests, under the Fair Labor Standards Act, time spent by Option 2 employees and Option 1 employees who qualify for a reasonable accommodation exemption to get tested is compensable time. 

Determination of Vaccination Status-Recordkeeping Requirements

As part of the Vaccination Policy, the ETS will require employers to determine the vaccination status of all employees by December 5, 2021, which includes obtaining proof of vaccination for all employees who report that they are vaccinated.  Vaccination status and proof of vaccination are confidential medical records that must not be disclosed, except as required by law. It is permissible to inquire whether an employee is vaccinated, but, unless the employee is seeking a reasonable accommodation exemption, the inquiry should end right there.  Asking an employee why he or she is or is not vaccinated can be considered an impermissible health-related inquiry.  Similarly, if an employee makes a request for a medical reasonable accommodation exemption, follow-up inquiries should be limited to requests for documentation from a health care provider that the employee cannot be vaccinated and should not inquire about why the employee is unable to be vaccinated.

Paid Sick Leave for Vaccinations

The ETS require employers to provide reasonable amount of paid sick leave for employees to get vaccinated (up to 4 hours) and additional time to recover from the side effects of a primary (non-booster) vaccination dose.

WHAT EMPLOYERS NEED TO DO BY JANUARY 4, 2022

Employers who elect Option 2 and employers who elect Option 1 but have employees who qualify for a reasonable accommodation exemption must begin weekly testing of their unvaccinated employees by January 4, 2022.  Employers must keep records of all employee test results, which are confidential medical records. 

ADDITIONAL RESOURCES

Additional information, including a general overview, Frequently Asked Questions, and model policies can be found on the OSHA website at: https://www.osha.gov/coronavirus/ets2.