On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The ETS was stayed and numerous challenges to the Standard were consolidated and will be heard by the Sixth Circuit Court of Appeals, which is expected to make a decision on the merits of the ETS within a matter of weeks. However, that decision is likely to be appealed to the Supreme Court. Recall that the ETS requires employers with 100 or more employees, to develop, implement, and enforce a mandatory COVID-19 vaccination policy or implement an alternative standard that includes weekly testing. Employers must provide employees with up to four hours of supplemental paid leave for employees to receive each primary vaccination dose and “reasonable” time and paid leave to recover from any side effects of the COVID-19 vaccine (for a discussion of ETS requirements see Alert 2021-18). Employers may want to consider their approach to compliance in the event the ETS is upheld as many deadlines are fast approaching. Common questions on the ETS (if it is upheld) include:
Q: If the ETS is upheld, what are the important dates for employee testing & tracking? The ETS was written with TWO key dates: (1) December 6, 2021, for compliance with all sections of the ETS except for provisions requiring COVID-19 testing of unvaccinated workers; and (2) January 4, 2022, for compliance with the COVID-19 testing provisions for unvaccinated workers. In other words, the covered employer must adopt a policy, determine and confirm the vaccination status of all employees, provide paid leave, and take other administrative actions by December 6, and then, if the employer’s policy allows, begin mandatory testing for COVID-19 for unvaccinated vaccinated workers by January 4, 2022.
Q: Are employers allowed to implement a partial mandatory vaccination policy that requires vaccination for some employees but allows other employees the choice of vaccination or testing? Yes, OSHA recognizes there may be employers who implement partial mandatory vaccination policies, i.e., that apply to only a portion of their workforce. An example might be a retail employer who has a mixture of staff working at the corporate headquarters or teleworking and staff working in stores serving customers. In this type of situation, the employer may choose to require vaccination of only some subset of its employees (e.g., those working in stores), and to treat vaccination as optional for others (e.g., those who work from headquarters or who perform intermittent telework). Any distinctions should be based on a reasonable business classification or need.
Q: What does “fully vaccinated” mean in regards to testing requirements? Employers must ensure that any employee who is not “fully vaccinated” complies with the testing requirements in the ETS, including weekly testing for employees who report at least once every 7 days to a workplace where other individuals are present. “Fully vaccinated” means a person’s status 2 weeks after completing primary vaccination with a COVID-19 vaccine with, if applicable, at least the minimum recommended interval between doses in accordance with the approval. In the case of a two-dose vaccination series (e.g., Pfizer-BioNTech and Moderna), an employee is considered “fully vaccinated” 2 weeks after receiving the second dose of the series. However, employers have until January 4, 2022 to comply with the testing requirement, and employees who have completed the vaccination process by that date do not have to be tested. In other words, at this stage, a booster shot is not required to be considered fully vaccinated.
Q: Are unvaccinated teleworkers who are required to come into the office only occasionally required to be tested on a weekly basis? No, but the employer must ensure the employee is tested for COVID-19 within seven days prior to returning to the workplace and provides documentation of that test result to the employer upon return to the workplace. For example, if an unvaccinated employee has been teleworking for two weeks but must report to an office where other employees will be present on a specific Monday, that employee must receive a COVID-19 test within the seven days prior to that Monday and provide documentation of that test result to the employer upon return to the workplace. Note that a mask/face covering is not an acceptable alternative to this requirement.
Q: Do at-home self-tests meet the testing component of the ETS? No, tests that are self-administered and self-read do not satisfy the requirements of the ETS. Note that if a self-administered test is being used, the test can be validated through the use of an authorized telehealth proctor when part of the tests authorization and approval submission or by an employer (not a recommended practice).
Q: Are employers required to pay the costs associated with testing unvaccinated employees? No, but employer payment for testing may be required by other state and local laws, regulations, collective bargaining agreements, or other negotiated agreements. Employers may also be required to pay for testing under certain EEOC guidance if testing is a reasonable accommodation for employees who are not able to be vaccinated because of a disability or a sincerely held religious belief. Again, employers are not required to comply with these testing requirements until January 4, 2022.