OSHA Issues Emergency Temporary Standard Requiring Covered Employers to Require COVID-19 Vaccination or Weekly COVID-19 Testing for All Employees

November 5, 2021


The Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) in the Federal Register, effective Friday, November 5, 2021. The ETS requires covered employers to implement mandatory COVID-19 vaccination policy or allow employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering in the workplace. The deadline for compliance is January 4, 2022. Employees who request an exemption based on sincerely held religious beliefs or medical conditions that prevent vaccination are entitled to an accomodation to the extent required by Title VII or the ADA. 

The OSHA testing requirement for unvaccinated employees goes into effect January 4, 2022, and covered employers must be in compliance with all other ETS requirements (e.g., providing paid-time for employees to get vaccinated and masking for unvaccinated workers) by December 5, 2021. 

The ETS applies to all private employers with 100 or more employees. Covered employers must require all employees to be vaccinated and provide proof of vaccination status by January 4, 2022. Acceptable proof of vaccination includes a COVID-19 Vaccination Record Card, other official medical record of vaccination, or if an employee is unable to produce such documents, a signed and dated statment by the employee attesting to vaccination subject to criminal penalities for knowingly providing a false statement. Covered employers must also maintain a roster of each employee's vaccination status and must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated. 

Alternatively, employers can adopt a policy that allows unvaccinated employees to wear a face covering and that requires employees to provide documentation of their most recent COVID-19 test result to the employer at least every seven days. Employers are not required to pay for any costs associated with testing unvaccinated employees. However, the ETS cautions that employers may be required to pay for testing by other laws, regulations, or collective bargaining agreements. 

In the event an employees does not provide adequate proof of vaccination and does not provide proof of weekly testing, "the employer must keep that employee removed from the workplace."

Beginning December 5, 2021, covered employers must provide employees "a resonable amount of time" off work to receive each vaccination dose, up to four hours of paid leave for each vaccination dose, and paid leave for a "reasonable time" to recover from any side effects experienced following each vaccination dose. 

OSHA is tasked with enforcement and will assist companies with vaccination plans. Covered employers can be fined for non-compliance based on the employer's size and other factors. 

In addition, the Ohio Public Employment Risk Reduction Program (PERRP) is expected to adopt OSHA ETS and enforce the ETS requirements as applied to public sector employers in Ohio. 

Federal contractors received an extension until January 4, 2022 to comply with the federal contractor vaccination mandate. Previously, Executive Order 14042 required vaccination by December 8, 2021. Federal contractors do not have the option to undergo weekly testing in lieu of vaccination. 

Health Care Facilities that treat Medicaid and Medicare patients must require all employees to be fully vaccianted by January 4, 2022. There is also no weekly COVID-19 testing alternative. Penalties for noncompliance include fines and loss of Medicare/Medicaid funding for the facility. 

If you have questions about compliance with the new mandates and how it may affect your organization, contact our Labor & Employment Group




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