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Grab the kids and pour yourself a martini – OSHA’s ETS on vaccination and testing is out!

By November 5, 2021Blog Posts

Because employment lawyers wait in breathless anticipation for administrative publications like Swedes for the new Ikea catalogue, I didn’t waste a minute perusing this morning’s Emergency Temporary Standard (ETS) from our friends at OSHA.   Presently, it is still in the form of an “interim final rule”, which means that employers and other interested parties will be given an opportunity (the “comment period”) to vent their spleen offer their opinions on the rule, and so the final rule may well be somewhat different after all of the dust settles.  But, for now, the interim rule is what we have to contend with.

Much like the Ikea catalogue, the ETS clocks in at a mighty 490 pages; however, unlike the Ikea catalogue, the substance of it occupies only a meager dozen or so of those pages, so let’s dive right in.

Vaccination, Testing, and Face Coverings

As you’re savoring the rich bureaucratic prose, don’t be tempted to skip past § 1910.501(a) Purpose.  Here, OSHA makes crystal clear that its intention is to “preempt inconsistent state and local requirements” relating to vaccination, verification, face covering, and testing requirements.  Take that, Montana!

(b) Scope and Application.  The ETS applies to employers with one hundred or more employees, excluding federal contractors, healthcare services or healthcare support services (who are covered under other regulations), employees working from home or who do not otherwise report to a workplace where others are present, and employees working outdoors.

(c) Definitions.  Employers are required either to promulgate a mandatory vaccination policy, or to ensure that their employees wear face masks and provide weekly proof of a negative COVID-19 test.  The mandatory policy must require employees to be “fully vaccinated”, meaning that they cannot come to work until two weeks after their second vaccination, which may not be received earlier than seventeen days after the first dose.  Otherwise, unvaccinated employees must wear face masks and provide weekly proof of COVID-19 testing.  The face mask may be of the standard retail variety, but it does not appear that face shields would pass muster here.  Regarding “testing”, the mandatory weekly test for the unvaccinated must be one that has been at least authorized by the FDA and cannot be both self-administered and self-read (unless an employer representative or “telehealth” representative is kibbitzing along with you while you read your test results).

(d) Mandatory Vaccination Policy. Employees may exempt themselves from the vaccination requirement due to “medical necessity” or may be given a “reasonable accommodation” owing to a disability or “sincerely-held” religious objection.  Remember that any accommodation must be “reasonable” (in most cases, it will involve donning the mask and providing proof of weekly testing), and that an employer need not accommodate if it would cause an “undue hardship” or risk creating an unsafe work condition.

Sincerely-Held Religious Objection

The EEOC has given some guidance as to what constitutes a “sincerely-held” religious objection, which does not include any objection rooted in social, political, or economic views, or nonreligious concerns about possible side effects of the vaccine.  How do you know if that employee who has suddenly “found religion” might not be telling the Gospel truth?  The EEOC recommends that employers investigate:

(1) whether the employee has acted in a manner inconsistent with the stated belief;

(2) whether the accommodation sought is a particularly desirable benefit; and

(3) whether the timing of the request renders it suspect.

Fleshing out the “undue hardship” bit, as a general matter, employers are not required to provide an accommodation that would pose anything more than a “de minimis” cost, including both monetary costs and “the burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.” Relevant to this analysis are:

(1) whether the employee works outdoors or indoors;

(2) whether or not the employee works in a group work setting;

(3) whether the employee has close contact with others (especially vulnerable individuals);

(4) the type of workplace;

(5) the nature of the employee’s duties;

(6) the number of employees who are fully vaccinated;

(7) how many individuals enter the workplace; and

(8) the number of employees who are seeking a similar accommodation.

(e) Determination of Employee Vaccination Status.  As the Russians are fond of saying, “Доверяй, но проверяй” (doveryai, no proveryai – trust, but verify).  While you may trust your employees implicitly, the OSHA or HHS auditor may not, and the ETS imposes very specific record-keeping requirements.  When verifying vaccination status, the following are acceptable forms of proof:

·         Health care provider or pharmacy immunization record;

·         COVID-19 Vaccination Record Card;

·         Medical records documenting vaccination;

·         Immunization record from public health information system; or

·         Other official documentation containing type of vaccine, date, name of health care professional or clinic administering vaccine.

If, for whatever reason, the employee is unable to produce any of the above, also acceptable is a signed a dated statement from employee attesting that the employee has been fully vaccinated (and providing the type of vaccine, date of vaccination, and entity administering the vaccine) and does not have the documentation, and including the statement: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.” (blood oath optional, but encouraged).

(f) Employer Support for Employee Vaccination. That’s what the employees have to do.  What the employer has to do is to provide up to four hours of paid time off (including travel) for each vaccination dose and paid sick leave for a “reasonable time” to recover from any side effects caused by the vaccination.  The regulation does not specify whether this paid time may be drawn from the employee’s sick time or PTO “bank”, but at least one commentator so far has said that it may.

(g) COVID-19 Testing for Employees Who Are not Fully Vaccinated. Here’s something that the employer does not have to pay for (though it may) – testing!  Unvaccinated employees must provide proof of a negative test once every seven days, although an employer cannot require testing for at least ninety days from any positive COVID-19 test result.  Like the employee vaccination status documentation described earlier, the employer must also preserve documentation of employee test results.

(h) Employee Notification of Positive Test Result. Employees must “promptly” notify their employers in the event of a positive test result and stay away from the workplace until they can provide proof of a negative test result, meet the CD “isolation guidance” criteria, or their health care professional gives them the green light to do so.

(i) Face Coverings.  For the unvaccinated, face coverings must be worn while indoors with people (except while eating or alone with the door closed) and while in a vehicle with someone else.  No guidance is given for when your employees are eating in a vehicle with someone else, but it might be a sign that your break room could use a little sprucing up.

(j) Information Provided to Employees.  That new-hire packet is going to need some heavy-duty staples by now.  Employers are required to distribute to their employees copies of:

·         The ETS (just the regulations, I imagine, not all 490 pages of it!);

·         The CDC document found at:;

·         The OSHA “anti-retaliation” requirements found at 29 CFR 1904.35(b)(1)(iv); and

·         The prohibitions against knowingly providing false statements or documentation found at 18 U.S.C. 1001 and OSH Act §17(g).

All of these your employees will give the same rapt attention that they do to your employee benefit plan disclosures, I am sure.

(k) Reporting COVID-19 fatalities and hospitalizations to OSHA.  COVID-related fatalities must be reported within eight hours of the employer’s having learned of them, and hospitalizations must be reported within twenty-four hours.

(l) Availability of Records.  If an employee or your friendly neighborhood OSHA inspector comes ‘round, you’d better cough up those vaccine and testing records that you’re required to keep by the next business day.  You get four days to produce a copy of your vaccination policy and tally of vaccinated versus non-vaccinated employees.

Good job!  You made it through.  Now, go treat yourself to a Stjårnbräcka