COVID-19 Employer Update November 5, 2021: Mandatory Vaccination or Weekly Testing for Employers with 100 or More Employees

By Krista Nelson Slosburg | Related Practice: Employment

Category: Covid-19

Alert: After a brief stay, the OSHA mandatory vaccination or testing rule is now back in effect. On Friday, December 17, the Sixth Circuit Court of Appeals lifted a stay (a court-imposed pause) of the rule the Fifth Circuit Court of Appeals had imposed in November. Though technically the rule is immediately in effect, OSHA announced that it is exercising enforcement discretion and “will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

Employers with 100 or more employees should take steps immediately to comply with the rule as outlined in the article below, with the goal of implementing all requirements other than weekly testing as soon as practicable, and to begin mandatory testing of any unvaccinated employees by February 9, 2022, if not sooner.

Read here for additional information about the Sixth Circuit’s December 17th ruling.


This week OSHA, a part of the U.S. Department of Labor, released the rule that implements a requirement for vaccination or weekly testing of all employees at employers with 100 or more employees. OSHA’s summary of the rule can be read here. The rule is called an Emergency Temporary Standard (ETS), and takes effect immediately on publication, which is scheduled for Friday, November 5, 2021. Here’s what you need to know:

Which employers does the rule apply to? The rule applies to all employers, both in the public and private sectors, who have at least 100 employees, except for employers subject to a different federal requirement on vaccination for COVID-19:
 

Federal employees, federal contractors, and federal subcontractors	Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors
Employers in settings where employees provide healthcare services or healthcare support services	Healthcare ETS (also effective November 5, 2021)
All other employers with 100 or more employees	COVID-19 Vaccination and Testing, Emergency Temporary Standard

How do you count employees for purposes of this rule? The rule applies to employers with a total of 100 or more employees at any time the rule is in effect. Corporate entities with more than one location must count “all employees at all locations . . . for purposes of the 100-employee threshold.” Because the rule is likely to be in effect throughout 2022, employers with fluctuating workforces should do their headcount based on their highest annual employee census.

Can smaller employers ignore this rule? For the time being, the rule applies only to employers with at least 100 employees. However, OSHA made clear that an expansion to include smaller companies is possible in the future. If you have fewer than 100 employees, stay tuned.

What are the key deadlines? The rule takes effect immediately on November 5, 2021. Employers have 30 days, until December 5, 2021, to comply with all aspects of the rule except for the testing requirement -- these include adopting a written policy, requiring masks for unvaccinated employees, giving employees paid leave to get vaccinated and recuperate from vaccine side effects, and providing certain notices to employees.  (See below for detailed requirements). No later than January 4, 2022, covered employers must begin to conduct weekly testing of any employees who have not received all doses required for full vaccination.

What are the requirements for employers? Employers must satisfy all of the requirements listed below. All except for the testing requirements must be in place by December 5, 2021. The testing requirement must be in place by January 4, 2022.

1. Establish, implement, and enforce a written vaccination policy. The policy must either mandate vaccines for all covered employees (with exceptions for reasonable accommodations for disability or religious observances and beliefs), or must allow any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 consistent with the ETS.
2. Determine and retain a record of each employee’s vaccination status. Employees must provide proof of vaccination from a list of acceptable methods of proof. If acceptable proof is not available, the employee must provide a signed and dated statement attesting to their vaccination status. The rule provides specific language that the statement must include. Employees who do not submit proof of vaccination or an acceptable attestation must be treated as not fully vaccinated. Note: Employers who have already ascertained employee vaccination status before the ETS took effect through a different form of attestation or proof, and retained records of that ascertainment, may use the records of that ascertainment for any employee whose fully vaccinated status was documented before the ETS. The employer’s record that it ascertained vaccination status is considered acceptable proof of vaccination.
3. Maintain a roster of vaccination status and preserve proof of vaccination. The roster and records are considered to be employee medical records, and must be maintained as such, though the records and roster do not have to be retained after the ETS is no longer in effect.
4. Availability of records. Employers must make records of employee vaccination documentation and test results available within certain timeframes:
   • An individual employee and anyone with that employee’s written authorized consent must be given access to that employee’s proof of vaccination documentation or test results by the end of the next business day after a request.
   • An individual employee or an employee representative must be given an aggregate number of fully vaccinated employees, as well as the total number of employees at the workplace, by the end of the next business day after a request.
   • An employer must provide its written vaccination policy and the aggregate numbers of fully vaccinated employees and total number of employees to OSHA within four hours of the request. The employer must provide to OSHA all other documents and records required to be maintained under the ETS by the end of the next business day after a request.
5. Support vaccination efforts through time off, paid time off, and additional paid sick leave. Employers must give each employee “a reasonable amount of time” for each primary vaccine dose, and provide up to 4 hours of paid time, including travel time, at the employee’s regular rate of pay, for that purpose. Employers must provide “reasonable time and paid sick leave” “to recover from side effects experienced following any primary vaccination dose to each employee for each dose.”
   • Up to 4 hours paid vaccination leave. The paid time off for vaccination may not be offset by any other leave that the employee has accrued, such as sick leave or vacation leave.
   • Reasonable paid sick leave - up to two days per vaccine dose. The rule does not specify how much recovery time is “reasonable,” but says that employers may set a cap on vaccine recovery leave, and more specifically that “if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement.” An employer may require an employee to use accrued paid sick leave while recovering from vaccination side effects, but may not require an employee to use accrued vacation leave for that purpose, and may not require an employee to “go into the negative” by borrowing against future paid sick leave. In other words, if the employee does not have sufficient accrued paid sick leave (or PTO that includes sick leave) available, then the employer must give the employee additional paid sick leave in a “reasonable” amount.
   • No retroactive credit for vaccines already received. Employers are not required to pay employees or credit leave used in the past for vaccine doses received before the rule issued.
   • Booster shots. Employers may, but are not required to, provide paid or unpaid time off to employees for seeking booster shots. Employers are not required to provide extra paid sick leave to employees recovering from the side effects from booster shots, but must allow employees to use accrued paid sick leave for that purpose.
6. Ensure weekly (or more frequent) testing for all unvaccinated employees except for the 90 days after a positive test.
   • An employee who reports to a workplace where other people are present at least once every seven days must be tested at least once every seven days, and must provide documentation of the most recent result no later than the seventh day after providing their last test result. For example, if an employee provides a test result on January 1, they must provide another test result no later than January 8.
   • An employee who does not report to a workplace with other people for more than seven days must be tested within seven days before returning to work, and must provide documentation of the test result upon return to the workplace. For example, if an unvaccinated employee takes a ten-day vacation, they must get tested within seven days before they return from vacation, and must provide documentation of the test result when they arrive back at work.
   • If the required documentation of a test result is not provided, the employer must keep that employee out of the workplace until the employee provides a test result.
   • The employer must maintain a record of each test result provided by each employee. These test results are considered to be employee medical records, and must be maintained as such, though they do not have to be retained after the ETS is no longer in effect.
   • An employer must not require an employee to submit to weekly (or pre-workplace attendance) testing during the 90 days after a positive COVID-19 test or a positive COVID-19 diagnosis by a licensed healthcare provider.
7. Response to COVID-19 diagnosis or test result. Employers must (1) require employees to promptly notify the company of a positive test result or diagnosis, (2) immediately remove such an employee from the workplace until the employee (a) receives a negative NAAT test after a positive antigen test, (b) meets the CDC’s return to work criteria in the CDC’s Isolation Guidance, or (c) receives a recommendation to return to work from a licensed healthcare provider. The ETS does not require employers to provide paid time off while an employee is excluded from the workplace, but the employee may be entitled to paid time under a company policy, collective bargaining agreement, or state law.
8. Require face coverings for unvaccinated employees.
   • Ensure employees who are not fully vaccinated wear a face covering when indoors and when occupying a vehicle with another person for work purposes. Exceptions to the face covering requirement are (a) when the employee is alone in a room with floor to ceiling walls and a closed door, (b) for a limited time when the employee is eating or drinking, or for identification purposes for safety and security requirements, (c) when the employee is wearing a respirator or medical facemask instead of a cloth face covering, and (d) where the employer can show that the use of face coverings is infeasible or creates a greater hazard than wearing a face covering. Employers are responsible for making sure that face coverings are worn properly and are replaced when they become damaged, dirty, or wet. 
   • Employers must allow employees to wear a covering with greater protection than required, such as if an employee chooses to wear a face shield in addition to a cloth face covering.
   • Employers may not prohibit customers or visitors from wearing face coverings. Employers may require that customers or visitors wear face coverings but is not required to do so.
   • The ETS does not require employers to pay for or to provide face coverings to employees, but other laws might impose that obligation on employers. In Washington, employers are required to make face coverings available to their employees.
9. Provide notices to all employees. Employers must provide every employee with certain information, in a language and at a literacy level that the employee understands. The required information includes: (1) the requirements of the ETS rule, along with company policies implementing the rule, (2) a copy of the document “Key Things to Know About COVID-19 Vaccines,” (3) OSHA rules against terminating or discriminating against a worker who reports work-related illness or injury and against retaliating against an employee for reporting or complaining about workplace safety, and (4) OSHA prohibitions against supplying false documents or statements in workplace safety matters.
10. Report COVID-19 fatalities and hospitalizations to OSHA. Employers must report to OSHA any work-related COVID fatality within 8 hours of learning of the fatality, and report any work-related COVID inpatient hospitalization within 24 hours of learning of the hospitalization.

What counts as fully vaccinated? Are booster shots required? Booster shots are not required under the ETS. A person is considered fully vaccinated under the ETS two weeks after they have received two shots of either the Pfizer or Moderna vaccine, or one shot of the Johnson & Johnson/Janssen vaccine. While employees are not fully vaccinated until two weeks have passed since the date of their last shot, if those employees have received their vaccine, they are not subject to the testing requirement during the two-week waiting period. Based on the ETS’s November 5, 2021 publication date and the recommended schedules for receiving the full course of each of the three FDA-authorized vaccines, the last day that employees can be vaccinated and avoid the testing requirement are as follows:
 

Vaccine	Last Day to get first vaccination shot
Pfizer	December 14, 2021
Moderna	December 7, 2021
Johnson & Johnson/Janssen	January 4, 2022

What tests can be used to satisfy the testing requirement?

Acceptable Tests	Not Acceptable Tests
Diagnostic (Viral) tests. Both antigen and nucleic acid amplification tests (NAATs) may be used, as long as the particular test (1) is cleared, approved, or authorized and (2) is administered in accordance with the instructions.	Antibody tests
Over-the-counter or “home” tests that meet the above standards can be used, but they may not be self-administered and self-read by the employee unless the administration and result is observed by the employer or an authorized telehealth proctor.	Over-the-counter or “home” tests administered at home without observation by the employer or a telehealth proctor.

Who has to pay for the cost of employee testing? Employers are not required to pay the cost of testing for employees who opt to submit to weekly testing instead of getting vaccinated. Employers may choose to pay for testing costs, but it is not required that they do so.  Keep in mind that for those employees who receive a religious or medical exemption to the vaccine mandate, employers may have to pay for the cost of testing. For more information on navigating requests for religious or medical accommodations, please see our previous post and recent discussion of the EEOC’s updated guidance for religious accommodations.

Are any employees exempt from the vaccination or testing requirement? The requirement exempts (1) workers who do not come into contact with others at work (workers who telework from home and workers who do not report to a workplace where other individuals are present) and (2) workers who perform their work exclusively outdoors. However, these employees would still need to meet the requirement if they were going to report to an indoor work setting with other individuals, even for a single day or a short time period. OSHA’s rule allows employers to “make slight adjustments to their current work practices to ensure that their employees qualify for the outdoor exemption,” such as holding meetings outdoors instead of in a traditional indoor location.

• What counts as working “exclusively outdoors”? An employee is considered to work exclusively outdoors even if they make minimal and brief use of indoor spaces such as a multi-stall bathroom. However, occupying a vehicle with other employees as part of work duties is considered indoor work. An employee who routinely occupies a vehicle with other employees is not exempt from the vaccination or testing requirement, and must wear a face covering while at work if they are not fully vaccinated.

What face coverings satisfy the mask requirement? Cloth face masks, gaiters, bandannas, and the like can all satisfy the rule. The covering must have two or more layers of fabric, be secured to the head, completely cover the nose and mouth without large gaps, and may not have exhalation valves or visible openings. The rule allows for clear panels or clear face coverings to facilitate communication for people who are deaf, hard of hearing, or others who need to see the speaker’s face to understand speech or sign language.

What about state laws? In general, the federal rule sets a minimum rule, but states and local jurisdictions (such as counties or municipalities) are permitted to set additional rules or requirements. There will likely be some legal disputes around this issue, but the Department of Labor’s messaging clearly states an intention that the rule will not supersede state or local requirements “intended to protect public health by helping to prevent the spread of COVID-19 in public spaces,” such as mask requirements in public spaces or proof of vaccination or recent testing to enter restaurants or other businesses or public spaces. Unless ruled otherwise by a court or announced otherwise by Governor Inslee, Stokes Lawrence recommends compliance with both the federal requirements as well as any state or local requirements that impose greater protections through heightened safety precautions.

Please contact Krista Slosburg, or any member of our Employment Group for help meeting these requirements or to check whether your existing vaccination policy satisfies the rule.

Additional information:

OSHA’s summary on the Emergency Temporary Standard: COVID-19 Vaccination and Testing ETS (osha.gov)

Text of the Emergency Temporary Standard: Federal Register : COVID-19 Vaccination and Testing; Emergency Temporary Standard

White House statement on the Emergency Temporary Standard: Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies | The White House

Our summary of Washington State Vaccination Requirement for State Workers and Statewide Indoor Mask Requirement: What You Need To Know: Governor Inslee Announces Vaccination Requirement for State Workers and Statewide Indoor Mask Mandate

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