Updated January 13, 2022: The Supreme Court of the United States (SCOTUS) has blocked OSHA’s Emergency Temporary Standard (ETS) regarding the COVID-19 vaccination or weekly testing mandate for employers with 100+ employees. The following information is now outdated and inapplicable.
On November 5, 2021, OSHA released its Emergency Temporary Standard (ETS) for President Biden’s vaccine mandate for qualifying businesses with 100+ employees. If your company meets this threshold, you have the responsibility to implement and educate your employees about the following requirements of the ETS.
Employee Vaccination Status
Employers must determine and document vaccination status of employees. OSHA specifies this to include obtaining legitimate proof of vaccination status, as well as maintaining records and a roster of each employee’s vaccination status.
Employer Policy on COVID-19 Vaccination
Per the ETS, your company must establish, implement, and enforce a written *mandatory vaccination policy (see OSHA’s template here). This vaccine policy should include the following details:
- The effective date, who the policy applies to, and deadlines to submit vaccination information (include procedures for compliance and enforcement).
- Applicable exclusions from the written policy (e.g., medical, disability, or sincerely held religious beliefs).
- Employees who work remotely, exclusively outdoors, or report to a workplace where no coworkers or customers are present are also excluded from having to comply with the ETS requirements. However, these employees should still be counted toward the 100-employee threshold.
- How vaccination status is determined.
- Method of how vaccination status will be collected.
- Paid time and sick leave for vaccination purposes.
- Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace.
- Lack of proof for vaccination status is considered “not fully vaccinated.”
You, the employer, must maintain record of each employee’s vaccination status and preserve acceptable proof of vaccination. These records are considered employee medical records and should be maintained as such.
*Your company may be exempt from implementing a mandatory vaccination policy “if it establishes, implements, and enforces a written policy allowing any employee not subject to a mandatory vaccination policy to either choose to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and to wear a face covering.” – OSHA
Time for COVID-19 Vaccination and Recovery
You need to inform employees they will not be penalized for time missed from work to be vaccinated and recover from any side effects. Per the ETS, employers must provide:
- A reasonable amount of time to each employee for each of their primary vaccination dose(s);
- Up to 4 hours of paid time (including travel time) to get vaccinated; and
- Reasonable time and paid sick leave to recover from side effects from being vaccinated.
Testing and Face Mask Requirements
If you choose to implement and enforce a policy that allows employees to either get vaccinated or be tested weekly (rather than a vaccination mandate), un-vaccinated employees must:
- Be tested for COVID-19 at least once every 7 days
- Provide documentation of the most recent COVID-19 test within 7 days of providing their last test result.
- Wear a face mask when indoors and when sharing a vehicle space for work purposes.
When employees go on vacation or only occasionally come into the office, they must be tested within 7 days prior to returning to the workplace and provide documentation of their test results.
Despite a negative COVID-19 test, un-vaccinated employees must continue to wear a face mask at the workplace until they are fully vaccinated. This is in force for anyone working indoors or when occupying a vehicle with another person for work purposes. Exceptions may include:
- When an employee is alone in an enclosed room with the door closed.
- When an employee is eating or drinking.
- During identification and safety/security purposes.
- When wearing a respirator.
- When wearing a face covering is infeasible or creates a greater hazard.
What To Do with a Positive COVID-19 Test
Regardless of vaccination status, employees must promptly notify their employer when they test positive for COVID-19 and be immediately removed from the workplace until the employee:
- Receives a negative test result on a COVID-19 nucleic acid amplification test if they choose to be retested;
- Meets the return-to-work criteria in the CDC’s “Quarantine and Isolation Guidance”; or
- Receives a recommendation to return to work from a licensed healthcare provider.
Per the ETS, you are not required to provide paid time off to any employee who tests positive or is exposed to COVID-19 and must quarantine or isolate. However, check with legal counsel to see if there are other laws, regulations, or collective bargaining agreements that may require you to pay time off.
Employee Education, Warning, and Rights
Not only do you need to inform employees about the above information, you must also educate them about the safety, benefits, and efficacy of the COVID-19 vaccine.
You must also inform employees about criminal penalties for supplying false statements or documentation. Anyone who falsifies their vaccination status will be referred to the US Department of Justice for criminal prosecution, which may include fines and/or imprisonment for up to 5 years.
As a reminder, you cannot discharge or discriminate against an employee that exercises their rights under the ETS.
For more information about the employer requirements for compliance with the ETS, please see the sources below or contact your Stratus.hr Representative. To read our employer FAQs about the ETS, please click here.