The Occupational Safety and Health Administration (“OSHA”), an agency of the United States Department of Labor, has issued an Emergency Temporary Standard (“ETS”) intended to minimize the risk of transmission of COVID-19 in the workplaces of large employers. The OSHA action follows remarks by President Joseph Biden on September 9, 2021, in which the President indicated that an ETS on employer vaccination requirements would be forthcoming.

The ETS, which spans almost 500 pages, contains detailed requirements relating to vaccination and testing of employees. Following is a summary of the most significant provisions. 

  • The ETS requirements apply to employers that have a total of at least 100 employees.

  • The ETS preempts state and local requirements relating to workplace rules on vaccinations, testing and face coverings.

  • Employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement and enforce a policy allowing employees who are not vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering in the workplace.

  • Employers are required to determine the vaccination status of each employee, obtain acceptable proof of vaccination, and maintain records of each employee’s vaccination status.

  • Employers must provide employees reasonable time, including up to four hours of paid time, to receive each vaccination dose and reasonable time and paid sick leave to recover from any side effects following each dose.

  • Employers must ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly.

  • Employers are not required to pay any costs associated with employee testing.

  • Employers must require employees to promptly provide notice when they test positive or are diagnosed with COVID-19.

  • Employers must ensure that each employee who is not fully vaccinated wear a face covering in the workplace.

  • Employers must provide employees with COVID-19 vaccination and testing policies and procedures. This includes the Center for Disease Control document “Key Things to Know About COVID-19 Vaccines,” information about protections against retaliation and discrimination, and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

  • Employers are required to make available – for examination and copying – an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that respective employee and anyone having written authorized consent of the said employee. Employers also must make available to an employee the aggregate number of fully vaccinated employees at a workplace and the total number of employees in that workplace.

The deadline for employers to comply with the ETS requirements, other than the employee testing provisions, is December 4, 2021. Employers are required to comply with the testing requirements for unvaccinated employees by January 3, 2022.

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