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OSHA Interim Final Rule: COVID-19 Vaccination and Testing ETS

November 5, 2021

On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) published an Emergency Temporary Standard on Vaccination and Testing (“Vaccination and Testing ETS”) requiring employers with at least one hundred employees to develop, implement and enforce a mandatory COVID-19 vaccination policy, or adopt a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering in the workplace.

The Vaccination and Testing ETS does not apply to employees in settings covered by the Healthcare ETS at 29 C.F.R. § 1910.502, or to workplaces covered by the federal contractor mandate. OSHA has advised that employers with employees covered by 29 C.F.R. § 1910.502 will need to determine if they also have employees covered by the Vaccination and Testing ETS. More information about the Healthcare ETS is available here.

Employers have until December 5, 2021 to implement certain related requirements, including:

 

  • Establishing a vaccination policy;
  • Determining each employee’s vaccination status and obtaining proof of vaccination;
  • Providing support for employee vaccination;
  • Requiring employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis;
  • Removing any employee who received positive COVID-19 test or COVID-19 diagnosis;
  • Ensuring employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes;
  • Providing each employee with information about the vaccines, workplace policies, protections against retaliation and discrimination, and applicable penalties for knowingly supplying false documentation; and
  • Reporting work-related COVID-19 fatalities to OSHA within eight hours and work-related COVID-19 in-patient hospitalizations within twenty-four hours.

Employers have until January 4, 2021 to ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer).

The Vaccination and Testing ETS as published in the Federal Register is available here. In addition, OSHA published additional resources about the Vaccination and Testing ETS including Facts Sheets, FAQ and Policy Templates available here.