November 4, 2021

OSHA Rolls Out COVID-19 Vaccine and Testing ETS for Large Employers

The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) imposing strict requirements on large employers (those with 100 or more employees) to comply with President Joe Biden’s COVID-19 vaccine mandate or face stiff fines. Large employers will have until Jan. 4, 2022, to ensure that employees are either fully vaccinated or subject to weekly testing and mask-wearing. Fully vaccinated means that the employee has received two doses of the Moderna or Pfizer-BioNTech vaccine, or one dose of the Johnson & Johnson vaccine. The OSHA rule is expected to be immediately challenged in court by states and business groups that oppose the mandate for a variety of reasons including concerns expressed by Western Growers President and CEO Dave Puglia in a letter to the Administration

Specifically, the ETS requires covered employers to do the following:

  • 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.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet the required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer). This requirement applies to all covered un-vaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements due to a disability or a sincerely held religious belief.
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The ETS generally applies to employers in all workplaces that are under OSHA’s authority and jurisdiction, including agriculture. Employers with 100 or more employees on the Nov. 5, 2021, effective date are covered by the ETS for the duration of the standard. If an employer has fewer than 100 employees on Nov. 5, the standard will not apply unless and until the employer subsequently hits the 100-employee threshold for coverage, at which time the employer would then be expected to come into compliance with the ETS’s requirements. Once an employer is covered by the ETS, the ETS continues to apply regardless of fluctuations in the size of the employer’s workforce, for the duration of the ETS.

Importantly, the requirements of the standard do not apply to the employees of covered employers who do not report to a workplace where other individuals such as coworkers or customers are present or while working from home or employees who work exclusively outdoors. This includes the testing requirements of the ETS. However, even though such employees are not required to comply with the vaccination or testing requirement of the ETS, they are counted when determining the size of the employer’s workforce. Also, the employees of a farm labor contractor or staffing agency are not counted for purposes of determining the size of the host company (e.g., the grower), but are counted as employees of the FLC or staffing agency.

The ETS requires covered employers to elect either full vaccination or weekly testing for their employees within 30 days. Within 60 days — by Jan. 4, 2022 — they must implement the mandate. Covered employers who are found to be willfully noncompliant with the ETS mandate could face fines of up to $14,000 per violation, with the potential for business being cited multiple times.

The ETS does not require employers to pay for testing, though it does require employers to pay for the time it takes employees to get tested (up to 4 hours) and for time needed to recover from vaccine side effects.

The Biden Administration estimates the new requirement will impact more than 80 million workers in the private sector.

OSHA is offering a number of resources to help employers comply with the ETS including a webinar, frequently asked questions and other compliance materials.