On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued its long-awaited emergency temporary standard (ETS) requiring COVID-19 vaccinations or weekly testing for all workers at most companies with 100 or more employees.

Scope and Application

With limited exception for certain health care employers and government contractors, the ETS applies to employers under OSHA’s jurisdiction that have 100 or more employees. To determine whether they are covered, employers must count employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work. This includes employees who perform work at off-site locations or at home, part-time employees, minors who may need parental consent to be vaccinated or tested for COVID-19, and temporary or seasonal workers employed at any time while the ETS is in effect. Independent contractors do not need to be counted. Notably, although employees who work exclusively from home or outdoors must be counted towards the 100-employee threshold, the ETS’s vaccination and testing requirements do not apply to them.

For employers with fluctuating employee numbers, the determination of whether they are covered by the ETS should initially be made as of the ETS effective date, November 5, 2021. If an employer has 100 or more employees on that date, the ETS will apply for the duration of the ETS. If an employer has fewer than 100 employees on November 5, 2021, but subsequently hires more workers and hits the 100-employee threshold, that employer would be expected to come into compliance with the ETS’s requirements and remain in compliance for the duration of time that the ETS is in effect.

The ETS does not apply to workplaces covered by the existing vaccine requirements for federal contractors or to employees in settings covered by the health care ETS while that ETS is in effect. However, if an employer has 100 or more employees company wide, including those covered by the health care ETS, it must comply with this standard for employees not covered by the health care ETS.

Employer Policy on Vaccination or Testing

The ETS requires covered employers to adopt written mandatory vaccination policies for their workplaces or adopt a written policy that allows employees to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. A mandatory vaccination policy must require vaccination for all employees except those in specific groups:

• those for whom a vaccine is medically contraindicated
• those for whom medical necessity requires a delay in vaccination
• those who are legally entitled to a reasonable accommodation pursuant to federal civil rights laws due to a disability or sincerely held religious belief, practice, or observance that conflicts with the vaccination requirement

There are no exemptions to the vaccination requirements for employees who have “natural immunity” or antibodies from a previous COVID-19 infection.

Covered employers can alternatively implement partial vaccination policies that apply to only a portion of their workforce while implementing a separate policy, which allows testing in lieu of vaccination for another subset of employees, but all employees must be covered by a compliant policy.

Policies should address

• the policy’s effective date and who it applies to,
• deadlines for submitting vaccination information or getting vaccinated,
• requirements for vaccination,
• applicable exclusions from the written policy,
• information on determining an employee’s vaccination status and how that information will be collected,
• paid time and sick leave for vaccination purposes,
• notification of positive COVID-19 tests and procedures for positive employees,
• how the employer is providing required information to employees, and
• disciplinary action for employees who do not abide by the policy.

Employers who choose to allow employees to either become vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work must still offer support for vaccination (including paid time and sick leave requirements) and may not prevent employees from getting vaccinated if they choose to do so.

If an employer already has implemented a vaccine mandate, they must evaluate their current policy to ensure it satisfies all the requirements of the rule. If it is missing elements, they must modify or update it to be compliant and provide required information to employees about the changes.

Employers must make their policy readily accessible to employees through their normal methods of distributing information. Employers can be required to provide their written policy to OSHA officials on request, and such a request must be complied with within four business hours.

Employee Vaccination Status

By January 4, 2022, employees who choose or are required to get vaccinated against COVID-19 must provide their employer with proof that they are fully vaccinated. An employee is considered fully vaccinated two weeks after the full required vaccine course is completed. Beyond collecting proof of full vaccination status, employers are not required to obtain additional information on employees who are fully vaccinated and who are eligible for a booster shot. Acceptable documentation of vaccination should generally include the employee’s name, type of vaccine administered, date (or dates) of administration, the name of the health care professional or clinic site administering the vaccine, and any of the following:

• the record of immunization from a health care provider or pharmacy
• a copy of the U.S. 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 (or dates) of administration, and the name of the health care professional or clinic site administering the vaccine

Employees must present a physical copy of a permitted vaccination record, or if the employer allows, they can provide a digital copy of an acceptable record (e.g., a clear and legible digital photograph, scanned image, or pdf). The employer must then retain either a physical or digital copy of the documentation provided by the employee as an employee medical record while the ETS remains in effect.

If an employee does not possess a COVID-19 vaccination record (e.g., because it was lost or stolen), the employee should contact their vaccination provider to obtain a new copy or use their state health department’s immunization information system. If the employee is unable to produce acceptable proof of vaccination, the employee must provide a signed and dated statement attesting to their vaccination status, that they are unable to provide proof, a declaration that the information is true and accurate, and acknowledging that knowingly providing false information may subject them to criminal penalties. The ETS includes a sample declaration form.

Covered employers must also create and maintain a roster listing of all employees regardless of vaccination status. The roster must clearly indicate for each employee whether they are fully vaccinated, partially vaccinated, 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.

Employer Support for Vaccination

Covered employers are required to support COVID-19 vaccination by providing reasonable time to each employee who chooses to get vaccinated during work hours for each of their primary vaccination dose (or doses). This means providing up to a total of four hours of paid time, at the employee’s regular rate of pay, for time spent getting vaccinated during working hours (including time spent traveling to the vaccination site, registration time, etc.). The maximum of four hours of paid time cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave. The four-hour pay requirement applies to the primary vaccination dose (or doses) necessary to achieve full vaccination—which may be one dose of the J&J vaccine or two doses of the Pfizer and Moderna vaccines. Employees who choose to get vaccinated after work hours or on their days off do not need to be paid.

Covered employers must also support employees who choose to get vaccinated by providing a reasonable period of paid time to recover from the vaccine’s side effects, if any. Here, however, if an employee has accrued paid sick leave, an employer may require the employee to use that paid sick leave for time missed when recovering from side effects experienced following a primary vaccination dose. Employers cannot require employees to use accrued vacation time to recover from vaccine side effects, nor can they require employees to use “advance” paid sick leave against what may be accrued in the future. Likewise, employers cannot retroactively deduct paid sick leave from employees who were vaccinated before the ETS was published. If the employer does not specify between different types of leave (e.g., it maintains a PTO program), the employer may require employees to use that leave when recovering from vaccination side effects.

The ETS does not specify the amount of time employers are required to provide for recovery from vaccination, but it does allow employers to set a “reasonable” cap on the amount of paid sick leave available to employees to recover from any side effects. Generally, OSHA presumes that an employer who makes available up to two days of paid sick leave per primary vaccination dose for side effects will be in compliance. Employees who are eligible for leave under the Michigan Paid Medical Leave Act (PMLA) would be entitled to use available PMLA paid time off for side effects of any duration.

Employee Testing

Each covered employee who is not fully vaccinated must undergo weekly COVID-19 testing, including employees entitled to a reasonable accommodation from vaccination requirements, unless that testing conflicts with their sincerely held religious beliefs. If an employee has been absent from the workplace for more than seven days, the employee must be tested within seven days before returning to the workplace and provide documentation of that test result on their return. In contrast, after an employee has received a positive COVID-19 test or diagnosis and is cleared to return to work, the employer must not require that employee to undergo testing for 90 days following the date of their positive test or diagnosis to avoid false positives. The employee must, however, continue to wear a mask at work.

To satisfy the testing requirements, employees must use a SARS-CoV-2 viral test that has been FDA-authorized, including in an emergency use authorization, which the test must be administered as instructed and not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens that are processed either individually or as pooled specimens), proctored over-the-counter tests, point-of-care tests, and tests where specimen collection and processing is either done or observed by an employer. Antibody tests do not meet the definition of a COVID-19 test for ETS purposes. Point-of-care tests can be used at a place of employment only if the facility obtains a certificate, issued by the Centers for Medicare and Medicaid Services, that waives compliance with the clinical laboratory improvement amendments. However, a certificate of waiver is not required for over-the-counter employee self-tests that are observed by an employer. Employers must maintain a record of each test result provided by each employee as employee medical records for as long as the ETS remains in effect.

OSHA believes there is sufficient testing availability and laboratory capacity to meet the anticipated increase in demand. However, if an employer is unable to comply with the ETS testing requirements due to inadequate test supply or laboratory capacity, OSHA will look at efforts made by the employer, as well as the pattern and practice of the employer’s testing program, for a demonstration of good-faith efforts to comply.

Although the ETS does not require employers to pay for any costs or employee time associated with testing, that payment may be required by other laws—such as the Fair Labor Standards Act (FLSA) or state wage-hour or safety laws—or collective bargaining agreements. Generally, time spent undergoing employer-required testing has been deemed compensable under the FLSA and state wage-hour laws, but we have not seen any definitive guidance on this issue to date.

Positive Test Results

Employees must promptly notify their employer of any positive COVID-19 test or diagnosis, meaning as soon as practicable before the employee is scheduled to start their shift or return to work. If the employee receives a positive COVID-19 test or diagnosis while at work, the employee must notify the employer as soon as safely possible while avoiding exposing any other individuals in the workplace. Employers must immediately remove from the workplace any employee, regardless of vaccination status, who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider. The employee may not return to the work site until the employee (1) receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing; (2) meets the CDC’s return to work criteria; or (3) receives a recommendation to return to work from a licensed health care provider. The ETS does not require employers to provide paid time off to any employee for removal resulting from a positive COVID-19 test or diagnosis. However, Michigan employers must continue to comply with the PMLA. Although the ETS does not require contact tracing after an employee tests positive for COVID-19, or the removal of any employee, regardless of vaccination status, for close contact with a COVID-19 positive person, Michigan employers must continue to comply with local public health guidance and 2020 PA 238, as amended by 2020 PA 339. Employers are not required to maintain records of employee notifications of a positive COVID-19 test or diagnosis unless a reported case of COVID-19 is determined to be work related.

Face Coverings

Employees who are not fully vaccinated are also required to wear a face covering when indoors or occupying a vehicle with another person for work purposes.

Employees’ Access to Information and Records

Covered employers must inform employees of the ETS’s requirements and any policies and procedures used to implement the ETS, including without limitation

• the benefits of vaccination and the process by which employers will determine vaccination status,
• the leave and pay to which employees are entitled for vaccinations and related side effects, and
• the procedures for notifying employers of a positive COVID-19 test or diagnosis.

Additional information must be provided to unvaccinated employees regarding COVID-19 testing and their mask-wearing obligations. Such information must be provided in a language and at a literacy level that employees understand.

On request, covered employers must provide employees or their authorized representatives prompt access to their individual vaccine documentation and test results as required by the ETS. Employers must fulfill these requests by the end of the next business day.

Effective Dates and State Plans

The ETS is effective November 5, 2021, when it was published in the Federal Register. Excluding its testing requirements, covered employers must comply with the ETS’s provisions by December 5, 2021. By January 4, 2022, covered employers must ensure that covered employees submit to weekly testing or be fully vaccinated against COVID-19.

State occupational safety and health agencies that operate under an OSHA-approved state plan (e.g., MIOSHA) are required by federal law to amend their workplace safety and health standards to be at least as effective as the ETS if their existing standards do not sufficiently protect employees from the hazards recognized by the ETS. To date, MIOSHA has no standard as broad as the ETS’s scope. Thus, MIOSHA is likely to adopt the ETS. Such adoption must occur by December 5, 2021.

The ETS will remain in effect until May 5, 2022. OSHA has indicated, however, that it may revise or withdraw the ETS as the pandemic continues to evolve.

Permanent Rulemaking Process Begins

The ETS serves as OSHA’s notice of intent to develop a final rule that contains the workplace requirements outlined in the ETS. Therefore, employers and other stakeholders have 30 days to submit comments and other relevant information explaining why they prefer or disfavor some or all aspects of the ETS. Additional information on how you can participate in the rulemaking process can be found here.

Although the ETS is widely anticipated to be subject to numerous legal challenges, covered employers should still consider how they will implement the policies and procedures necessary to comply with ETS, as legal battles surrounding the ETS may be drawn out. Moreover, employers who historically have had little-to-no interaction with OSHA or a state counterpart should consider how they will handle inspections from an occupational safety and health agency.

This article was co-authored by Allyson Terpsma. If you have any questions regarding the standard or other labor and employment matters, please contact Allyson Terpsma (aterpsma@wnj.com), Jonathan Kok (jkok@wnj.com), or any member of Warner Norcross + Judd’s Labor and Employment Law Practice Group.