What Employers Need to Know About the OSHA ETS Requirements
The Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) that requires employers with 100 or more employees to ensure that their employees who report to a workplace are vaccinated against COVID-19 or that unvaccinated employees who report to a workplace submit to weekly COVID-19 testing.
Are you an employer with 100 or more employees company-wide?
The ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in settings where employees provide healthcare services or healthcare support services that are subject to the requirements of the CMS interim final rule.
Does the New OSHA ETS Apply to Remote or Offsite Employees?
Starting December 5, 2021, employers must ensure all provisions of the ETS other than the testing requirements for unvaccinated workers (including, but not limited to establishing a policy on vaccination/testing, determining the vaccination status of each employee, and following recordkeeping requirements) are addressed in the workplace.
Starting January 4, 2022, employers must implement weekly testing requirements for employees who are not fully vaccinated.
How do I Verify Employees Vaccinations?
Covered employers must provide employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, including travel time. They must also provide reasonable time and paid sick leave — with the ETS not specifying an amount — to recover from side effects experienced following each dose.
Employers must also determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. These records are considered to be employee medical records and must be maintained as such in accordance with OSHA regulations and other applicable federal law.
Weekly COVID Testing Guidelines
Each employee who is not fully vaccinated must test for COVID-19 weekly if the employee is in the workplace at least once a week.
If an employee is away from the workplace for a week or longer, the employee must test for COVID-19 within seven days before returning to work.
If an employee receives a positive COVID-19 test, employers must ensure the employee is removed from the workplace as further explained below and may not require the employee to submit to weekly testing for 90 days following the positive test.
The ETS does not require employers to pay for any costs associated with the testing required under the standard. But employers may be required by other laws, regulations or collective bargaining agreements to pay for testing. Covered employers may also voluntarily assume the costs associated with testing, and may have payment obligations if their policies require more frequent testing.
Covered employers must ensure that employees who are not fully vaccinated wear face coverings indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
Employers are prohibited from preventing employees, regardless of vaccination status, from voluntarily wearing face coverings when doing so does not create a serious workplace hazard, such as interfering with the safe operation of equipment.
Does weekly COVID testing need to be in place for unvaccinated employees by January 4, 2022?
For employers who do not implement a wall-to-wall vaccine mandate for all employees, the requirements of the ETS for testing must be in place within 60 days of publication of the ETS, or by January 4, 2022.
All employees who have not provided proof of vaccination must be tested at least every seven days (and the results must be provided within seven days of when the prior test was given).
If an employee is away from the workplace for more than seven days, there must be a return-to-work test within seven days before returning to work, with results given no later than the day on which the employee returns to work.
What Type of COVID Testing is Allowed Under the ETS?
There are two types of diagnostic tests: a molecular test, also called the COVID-19 nucleic amplification test, or NAAT, and an antigen test. The ETS requires either a NAAT or a rapid antigen diagnostic test. An antibody test is not valid.
There are currently two methods of diagnostic testing: nasal swab and saliva samples (spit into a vial). The only tests that are acceptable under the ETS are tests that have been given an Emergency Use Authorization (EUA) by the U.S. Food and Drug Administration, or FDA. Throat swab tests are in development but they do not yet have Emergency Use Authorizations by the FDA (but will be allowed upon the issuance of an FDA Emergency Use Authorization).
While over the counter tests (typically antigen tests) may be used, home-testing that is self-administered and self-read is not acceptable — the use of such a test must be observed by a person designated by the employer, which may be an authorized telehealth proctor.
Do Employers Have to Pay for Weekly COVID Testing?
The testing must be documented, and records kept for the entire roster of employees, and made available to OSHA upon request. The testing records must be treated as confidential medical records.
Employer Communication Requirements for Positive COVID-19 Tests and COVID-19 Diagnoses
- If the positive test was an antigen test, a negative NAAT test may counter the positive antigen test.
- The employee follows the CDC Isolation Guidance, and under that guidance is clear to be with other individuals, that employee may return to work.
- A licensed healthcare provider clears the employee to return to work.
The ETS does not require employers to provide paid time to any employee for removal as a result of a positive COVID-19 test or diagnosis of COVID-19. But other laws, regulations or collective bargaining agreements may require employers to provide paid time.
The ETS disallows retesting employees within 90 days of a positive result. This may seem paradoxical, but an OSHA representative explained during a White House public briefing on November 4, 2021 that testing within 90 days of a positive result may result in many false positives.
Employers must provide employees the following information in a language and at a literacy level the employees understand:
- Information about the requirements of the ETS and workplace policies and procedures established to implement the ETS.
- The CDC document “Key Things to Know About COVID-19 Vaccines.”
- Information about protections against retaliation and discrimination under the OSH Act.
- Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
Employers must report work-related COVID-19 fatalities to OSHA within eight hours of learning about the fatalities, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization. Additionally, for COVID-19 cases the ETS eliminates the provision that employers are only required to report a work-related COVID-19 fatality if it occurs within 30 days of exposure and a work-related in-patient hospitalization if it occurs within 24 hours of exposure. Under the ETS, there is no such temporal limitation, and employers must report the work-related COVID-19 fatality or hospitalization regardless of how long the period of time between the work exposure and the death or in-patient hospitalization.
Employers must also allow an employee and anyone with the employee’s written authorized consent to examine and copy the employee’s COVID-19 vaccine documentation and any COVID-19 test results. Furthermore, employers must provide an employee, or the employee’s representative, the total number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
Will the ETS be Stopped by the Courts?
CMS Interim Final Rule
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