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OSHA vaccinate or test ETS (updated Dec. 20, 2021)

December 20, 2021

Update: On Jan. 26, 2022, the Occupational Safety and Health Administration (OSHA) formally withdrew its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).

The Occupational Safety and Health Administration’s (OSHA’s) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) requires COVID-19 vaccination or weekly testing for covered employers with 100 or more employees.

Whether or not your business has already taken steps to vaccinate employees, if your business is subject to the ETS, your existing COVID-19 policies and procedures must be updated to comply with the ETS requirements. The following are key compliance considerations to help you navigate that process:

Determine if you are a covered employer

The ETS applies to employers of 100 or more employees. The ETS does not apply to employers covered by the Safer Federal Workforce Task Force’s COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or the healthcare ETS.

For purposes of calculating the 100-employee threshold, employees include all full-time, part-time and seasonal employees employed directly by the employer, regardless of the employees’ location. Employers are required to conduct their count as of Nov. 5, 2021. If the employer has 100 or more employees on that date, the ETS will apply for the duration of the standard. If an employer does not have 100 employees as of Nov. 5, 2021, but later hires more employees and hits the 100-employee threshold, the employer must “come into compliance” with the requirements and the rule will apply for the remainder of the time the standard is in effect.

Calendar these critical deadlines

Jan. 10, 2022:  On or before Jan. 10, 2022, covered employers must comply with all requirements of the new rule, except for the requirement to conduct weekly testing for employees who are not “fully vaccinated.” Therefore, before the Jan. 10, 2022, deadline, you must:

  • Establish (or update) your employer policies to require either:
    • Mandatory vaccination for all employees, or
    • Weekly COVID-19 testing and masking for all employees who are not fully vaccinated.
  • Provide employees up to a total of four hours of paid leave to receive each of their primary vaccination doses. The four hours of paid leave cannot be offset by other leave, such as PTO, vacation or sick leave. Additional leave of up to two days will need to be provided in the event an employee suffers side effect from receiving the vaccine.
  • Complete collection, verification and documentation regarding the vaccination status for all employees.
  • Distribute required information to employees to satisfy new employee notice requirements.
  • Require all unvaccinated (or partially vaccinated) employees to mask indoors under most circumstances.
  • If you choose to require employees to be fully vaccinated, notify your employees of the following deadlines to schedule their first vaccination shot to comply with your policy by Feb. 9, 2022:
    • Pfizer: Jan. 19, 2022
    • Moderna: Jan. 12, 2022
    • Johnson & Johnson: Feb. 9, 2022 

Feb. 9, 2022: The deadline for employees to be fully vaccinated or subject to the mandatory weekly testing requirement. Additional guidance on navigating the testing option is forthcoming and will be published on our COVID-19 Resource Center.

Review the ETS and OSHA's related guidance

  1. Emergency Temporary Standard (starts on page 473)
  2. Review OSHA’s COVID-19 landing page where updates on the ETS can be expected
  3. See OSHA’s FAQs for answers to common questions
  4. Watch OSHA’s recorded 30-minute webinar on the new ETS

Seek guidance from counsel

While the deadlines for compliance are fast approaching, employers should consider the dynamics of their workforce and consult with legal counsel on their next steps. The attorneys at Godfrey & Kahn will continue monitoring developments related to the ETS, and post updates to our COVID-19 Resource Center.

For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our Labor, Employment & Immigration Law Practice.


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