Compliance: OSHA emergency standard on COVID vaccination

November 4, 2021

The Occupational Safety and Health Administration (OSHA) Thursday issued a new emergency temporary standard (ETS) designed to protect unvaccinated employees of large employers (100 or more employees, firm or company-wide) from the risk of contracting COVID-19 by strongly encouraging vaccination. It takes effect immediately and serves as a proposal for normal rulemaking for a final standard and OSHA seeks comment on all aspects of this ETS.

The ETS requires all covered employees to either be vaccinated or commence weekly testing by Jan. 4, 2022 and requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.

It does not require employers to pay for testing or face coverings, although employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements.

The ETS also requires employers to do the following:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee's vaccination status.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The ETS will cover two-thirds of the nation's private-sector workforce. In the 26 states and two territories with OSHA state plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff.

OSHA is permitted to issue an ETS if the agency determines that employees are subject to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and an ETS is necessary to protect employees from such danger.

OSHA has determined that many employees in the U.S. who are not fully vaccinated against COVID-19 “face grave danger from exposure to SARS-CoV-2 in the workplace.”

The ETS requires that covered employers develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

The mandate applies to 84.2 million workers at 1.9 million private-sector employers.

The policy must also include a process for accommodations for employees that cannot get the vaccine due to medical or religious exemptions.

The interim final rule will be effective upon publication in the Federal Register Nov. 5.  Written comments must be submitted within 30 days of publication.

Additional information can be found on CUNA's CompBlog