OSHA’s Emergency Temporary Standards (ETS) on COVID-19 Vaccination and Testing

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing.  The ETS takes effect upon publication in the Federal Register, November 5, 2021.  Covered employers have thirty (30) days to come into compliance with most aspects of the ETS, including vaccine mandates, but have sixty (60) days to comply with testing requirements.

The ETS Applies to Employers With 100 or More Employees:

The ETS covers employers with 100 or more employees, firm or company-wide.  OSHA expects this will cover approximately two-thirds of the nation’s private sector workforce.  Exempted from the ETS are workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors and workplaces where any employee provides healthcare services or healthcare support services and is subject to the requirements of the Healthcare ETS (§1910.502).

The ETS will also apply to public sector employees in states with OSHA State Plans.  OSHA’s Fact Sheet indicates public employers in states without OSHA State Plans will not be covered by the ETS.  The Massachusetts Department of Labor Standards (DLS), however, has not yet determined whether the ETS will apply to Massachusetts public sector employers.  Although Massachusetts does not have a State Plan, as many of you are aware, in 2018 the Massachusetts legislature passed An Act Relative to Standards of Employee Safety, which required public employers “provide public employees at least the level of protection provided under the federal Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et. seq., including standards and provisions of the general duty clause contained in 29 U.S.C. 654.”  Given the intent of the legislature, the DLS may determine it is appropriate to enforce the ETS here in Massachusetts with public sector employees.

Testing Requirements:

The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless the employer adopts a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.  Regardless of which option they choose, employers will be required to 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.  At this time boosters are not required to be considered “fully vaccinated.”

Employer Option to Permit Testing In Lieu of Vaccination:

Employers who permit testing as an alternative to vaccination, must require employees who are not fully vaccinated to be tested for COVID-19 at least weekly.  And employees who are not fully vaccinated must wear a face covering when indoors or in a vehicle with another person for work purposes.  There is an exception for fully remote employees and/or those who only come into the workplace on a limited basis.  Those individuals must only be tested within seven (7) days prior to coming to the office.  Those who test positive for COVID-19 are excepted from testing for 90 days to avoid false positives but are required to continue to wear a face mask.

Employer Obligations to Support Employee Compliance:

  • Leave – employers must provide paid time off to employees to get vaccinated and to recover from any side effects from the vaccination.
  • Testing – employers are not required to pay for employees to be tested. (Employers may, however, reach agreements with unions that provide for employer paid/free testing).  Employers can offer on-site testing and can also use pool testing.
  • Employee Notice – employers must require employees to notify them if they test positive for COVID-19. Once notified, employers have an obligation to remove that employee from the workplace, regardless of vaccination status, and prohibit the employee from returning until certain criteria are met.

In releasing this ETS, OSHA made clear that it will continue to monitor COVID-19 trends and may modify and change the ETS as necessary.  In addition, although it takes effect immediately, the ETS is considered a proposal and OSHA seeks comments before finalizing.

The ETS can be found here: https://public-inspection.federalregister.gov/2021-23643.pdf and a FAQ issued by OSHA can be found here: https://www.osha.gov/coronavirus/ets2/faqs.

If you have any questions regarding the content of this update, or any other questions regarding labor and employment law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.