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OSHA’s COVID-19 Workplace Vaccine, Testing Standard: Dates & Details

Emily Hartman /

[This article was updated November 17]

On November 4, 2021, the U.S. Occupational Safety and Health Administration released an Emergency Temporary Standard (ETS) regarding workplace COVID-19 vaccination policies.

The ETS is a response to a directive from President Biden and was published in the Federal Register on November 5. On November 5, several interested parties filed a lawsuit to challenge the ETS in the Court of Appeals for the Fifth Circuit, which has put the ETS on hold in Texas, Louisiana, and Mississippi. On November 8, 2021, in response to the permanent injunction lawsuit request, President Biden’s Administration advised businesses to move forward with the vaccine mandate despite the court order to pause the vaccine mandate and asked that the pause be lifted. On November 17, OSHA suspended implementation and enforcement of the federal vaccine mandate pending future developments in its litigation. KPA will continue to monitor the situation.

Several other suits have been filed in several other areas and more legal challenges are expected to occur. In the next week or so, a lottery will be held to determine which court will be the presiding court to hear all complaints and determine if the standard is constitutional. KPA expects to have more clarity about the status of the ETS around the Thanksgiving holiday. 

For the time being, impacted employers must prepare to comply with the standard.

Who Is Impacted by the COVID-19 Workplace Vaccine ETS?

Private employers with 100 or more employees.

What Are the Key Things to Know?

The main points to know about the standard’s requirements:

  • Employers must adopt a policy to ensure employees are vaccinated or adopt a policy that requires unvaccinated employees to wear a mask and get weekly COVID-19 tests.
  • Employers must provide paid time off for workers to receive their vaccination(s) and provide paid sick leave to recover from side effects of a vaccine dose.
  • Businesses that don’t comply will face OSHA fines.
  • States may also come out with their own vaccine mandate plans, but they will need to comply with and be as strict as OSHA’s ETS.
  • Employers will need to ensure they work with their legal counsel and monitor for any changes within their state. Keep in mind the states that have adopted state safety programs. These states must adopt the ETS or create their own version which must meet the requirements set by the federal ETS.

When Will the Policy Take Effect and What Will it Entail?

A number of provisions in the ETS are set to take effect 30 days after the standard is published in the Federal Register. The ETS will remain in place for 6 months after its Federal Register publication date or until a permanent standard is put in place.

We’ve put together the basic requirements as well as the deadline to comply. OSHA also put together a fact sheet of Key Compliance Dates.

RequirementComply By Date
Develop a vaccine policyDecember 5, 2021
Inform employees about:
– The ETS, workplace policies procedures
– Vaccine efficacy, safety, and benefits
– Protection against discrimination and retaliation
– Laws regarding criminal penalties for providing false information
December 5, 2021
Determine the vaccination status of every employee, attain proof of vaccination, maintain records of status December 5, 2021
Provide paid time off (up to 4 hours for each dose) to employees to get vaccinated and/or paid sick leave to recover from side effects of the vaccineDecember 5, 2021
Require employees to provide prompt notice of a positive COVID-19 test. Remove employees who receive a positive COVID-19 test or COVID-19 diagnosis from the workplaceDecember 5, 2021
Take action when an employee tests positive for COVID-19December 5, 2021
Report work-related COVID-19 fatalities to OSHA within 8 hours and COVID-19-related in-patient hospitalizations within 24 hoursDecember 5, 2021
Require unvaccinated employees to wear face masks indoors or when in vehicles with othersDecember 5, 2021
Allow other employees to voluntarily wear face masksDecember 5, 2021
Deadline for Federal Contractors to comply with vaccination requirementsJanuary 4, 2022
All employees must be vaccinatedJanuary 4, 2022
Test unvaccinated employees at least weekly or within 7 days before they return to workJanuary 4, 2022

Who Pays for the COVID-19 Testing?

Employers aren’t required to pay for or provide the COVID-19 tests, unless their state or local laws require it, or if it is included in a collective bargaining agreement.

Are There Any Exceptions?

Workplaces that are covered by the existing federal contractor requirements or the recent directive from the Centers for Medicare & Medicaid Services to health care workers at facilities that participate in a CMS program.

The standard doesn’t apply to employees that work remotely or work outdoors, although employers may choose to implement vaccination or testing requirements on these employees.

What Should You Do?

  • Prepare as if the ETS will take effect. Although there is legal uncertainty surrounding the ETS, employers should review it, its requirements, prepare as if it will take effect, and/or seek legal counsel on what your immediate next steps should be.
  • Determine if you’re covered. The number of employees is based on companywide numbers and not on numbers at a particular worksite and regardless of their status of temporary, full-time, or part-time. The employee count will be the number of workers as of November 5, 2021. If you have over 100 employees, the standard is intended to apply to you throughout its 6-month existence regardless of if the number of employees changes. Be sure to read OSHA’s FAQ page for clarification regarding franchisors/franchisees and other corporate entities.
  • Get your employees’ vaccination status and maintain records during the ETS. You’re required to maintain the vaccination status of your employees, so you’ll need to acquire this information and treat as a confidential medical record. As you inform employees about this news, include your vaccination policy, the vaccination status notification procedures for employees, and what documentation to provide.
  • Research testing options. If you need to implement testing, you’ll need to figure out what options are available and what will be most practical for your business and how you’ll implement your testing policy. For example, if you plan to use the self-administered antigen test which can be purchased over the counter, according to the standard, the test must be completed in view of the employer. This may or not be a reasonable option for your workplace.
  • Determine your paid time off policy. As part of the ETS, you’ll need to provide up to 4 hours of time off for employees who receive their vaccination(s) during regular working hours. This time could include scheduling the appointment, traveling, filling out paperwork, and waiting. Booster shots aren’t included in the ETS, but research if your state requires time off for boosters. Employers must offer reasonable time off for any side effects or have employees use available paid sick leave that is already provided to them. Check your state leave laws about paid sick leave for side effects.
  • Determine your remote worker requirements. The ETS doesn’t cover remote workers, you’ll need to decide if you’ll enforce a vaccination requirement on those employees or use remote work as an option for unvaccinated workers. If you implement the latter, you’ll need to determine how many workers this will include, what are the eligibility requirements for remote work, and potential costs to the business.
  • Develop a compliance strategy and policy. After researching all of the above, you’ll need to write a policy and procedure document that covers your approach to complying with the ETS and the consequences for noncompliance.
  • Communicate your policy and procedure with employees. in addition to your policy and procedure include information about the ETS, employee protection from retaliation and discrimination, the laws that state the penalties for providing false documentation, and the CDC’s Key Things To Know About COVID-19 Vaccines.
  • Establish reporting and recording. A roster of employees and record of their vaccinations, and weekly testing records must be kept by employers during the duration of the ETS. Employers are required to make the aggregate number of fully vaccinated employees and total number of employees available to an employee or an employee’s representative. Employers must also make certain records available for examination or for copying to an employee or employee’s representative.

KPA Is Here to Help

Employers are going to have different responses and scenarios in how the ETS will affect them; keep in mind that seeking advice from your general counsel may be your best option.

KPA has a COVID-19 Safety Program, with the right mix of software and compliance consulting that can help you manage the ongoing federal and state regulatory changes in the workplace. Our software solutions and compliance and safety consultants are here to help too. Contact us to learn more.

In the coming days and weeks, KPA will be updating our compliance training, documents, and other information that will help you navigate these requirements. Be on the lookout for more information from us about changes.

Additional Resources

COVID-19 Vaccination and Testing; Emergency Temporary Standard

COVID-19 Vaccination and Testing Emergency Temporary Standard Webinar

Emergency Temporary Standard FAQs

Emergency Temporary Standard COVID-19 Vaccination and Testing ETS (Compliance Materials)

Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies

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