FAQ: Prepare for OSHA’s ETS on COVID Vaccination and Testing

On November 5, 2021, OSHA published the Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing. Under the ETS, covered employers must obtain from their workers either proof of full vaccination or at least weekly COVID-19 testing of employees.

Though the dates for enforcement are up in the air due to legal challenges, employers can choose to prepare now for any short timelines for coming into compliance.

So how can employers prepare? Keep reading for answers to frequently asked questions about OSHA’s mandate to get ready.

What is the definition of “covered employers” and who is included in the employee count?

As a refresher, the ETS applies to private US companies with 100 or more employees company-wide (across all locations, unless they are independently owned and operated franchises) at any time the ETS is effective. The count includes those who meet any of these:

• Remote and may have interaction on-site with other workers or customers
• Part-time
• Vaccinated and unvaccinated
• Seasonal and temporary (if employed directly by employer while ETS is in effect)
• Minors (with parental approval for vaccines)
• H2B/Visa employees

While ALL employees must be counted to determine if the 100 employee threshold is met, the requirements of the ETS do NOT apply to employees that:  

• Work from home and have no interaction with other workers or customers
• Do not report to a workplace where customers or coworkers are
• Work exclusively outdoors (unless they are ever in the proximity of others)
• Are independent contractors

Again, this generally applies only to private US companies. However, governmental employers may be subject in certain states with state OSHA plans. For information on federal contractors or workers, you can read more about the guidelines here.  Additionally, it is important to note that if employers do not have 100 employees the day the ETS is effective, it does not apply to them. If they hire more staff and reach the threshold any time after, it will apply and continue to apply, regardless of fluctuation in workforce size.

What do employers need to include in a policy?

OSHA offers sample policies on mandatory vaccination and vaccination or testing and face covering employers can use to develop their policies. At minimum, covered employers must adopt a written vaccine policy by the compliance deadline and should address:

• Requirements for COVID-19 vaccination
• Applicable exclusions from the written policy (eg, medical contraindications, medical necessity requiring a delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs)
• Information on determining an employee’s vaccination status and how to collect this information
• Paid time and sick leave for vaccination purposes; notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace
• Detailed information for employees
• Disciplinary action for employees not abiding by the policy
• Requirements for testing and masking if the employer is not enforcing full vaccination

Additionally, employers should include relevant information regarding the policy, including:

• Effective date
• Which employees to whom the policy applies
• Deadlines (eg, for submitting vaccination information, for getting vaccinated)
• Procedures for compliance and enforcement

Communication Tip: Alongside their policy, employers should deploy a communication plan to inform employees about their compliance with the ETS. If you don’t have a communication plan yet, start with a simple statement that outlines when you plan to finalize your details. Likewise, identify someone in your company to answer any questions and establish a centralized location of ETS and mandate-related information. With social collaboration tools like Paylocity’s Community, you can create expert groups like “Ask HR” to funnel commons queries. For help getting started with any of this, you can use OSHA’s Social Media Kit for sample language or Paylocity’s Vaccine Mandate Resources.

How do employers determine vaccination status and what about accommodations?

Employers must obtain proof of vaccination by the compliance deadline and begin creating a roster of all employees and their status. That includes whether they’re fully vaccinated, partially vaccinated, have an exemption, or haven’t provided proof of vaccination (either because they choose not to get vaccinated or haven’t verified proof). Under the ETS, individuals are considered “fully vaccinated” if they’ve received two doses of Pfizer or Moderna or one dose of Johnson & Johnson. The ETS does not address booster shots currently.

Acceptable proof of vaccination status includes:

• Immunization record from a health care provider or pharmacy
• A copy of the COVID-19 Vaccination Record Card
• A copy of medical records documenting the vaccination
• A copy of immunization records from a public health, state, or tribal immunization information system
• A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s)

If employees can’t produce documented proof, a signed and dated employee attestation is acceptable. If employees are not fully vaccinated, they will be subject to testing requirements, which employers should track in their system.

Also, as noted, some employees in your roster may have an exemption. Employers must accommodate workers who cannot abide by vaccination policies due to a medical condition or disability under the Americans with Disabilities Act (ACT) or sincerely held religious beliefs. For advice collecting, reviewing, or processing these requests, the EEOC has information available for employers on their website and additional resources related to ADA reasonable accommodations can be found at ASKJan.org.

Documentation Tip: If an employer is worried about Health Insurance Portability and Accountability (HIPPA) violations, there’s no need. HIPAA does not apply to vaccine documentation when collected as part of an organization’s policy. Employers can tap into software like Paylocity’s COVID-19 Vaccination & Testing Tracking solution that easily collect vaccination and testing records and store them under a separate “COVID” category. By default, only company admins and company set admins can access this information. These admins can provide additional users access if they choose. Additionally, HR teams can empower employees to upload their documents, deploy automated workflows to collect new or updated documentation, and report on compliance to help streamline the process. 

How does paid time off work under the ETS?

OSHA requires that employers provide a reasonable time off for vaccination doses (not booster shots) and recovery. Employers must offer up to four hours of paid time total to employees for first and second vaccine doses. This includes hybrid or remote employees who travel to the worksite to receive their vaccines but not employee who work at home full-time. In some circumstances, an employee may need more time, which is considered unpaid but protected leave. Paid time off is not required if any employee chooses to get vaccinated outside of work hours.

Employers must also offer reasonable time and paid sick leave for employees experiencing side effects following any primary vaccination dose. There is no minimum time requirement for recovery, but employers can set a cap on the amount of paid sick leave available to employees for recovery. However, employers cannot force employees to go into negative paid sick leave balances for recovery.

Once you’ve established your policies under the ETS, you must inform each employee. Provide them clear information on:

• Vaccination policy, how you determine vaccination status
• Time and pay/leave for vaccination and recovery
• Procedures for providing notice of a positive COVID-19 test or diagnosis
• Procedures for requesting records
• Fact sheets such as the Key Things to Know About COVID-19 Vaccines, Workers’ Rights (in Spanish and English), and criminal penalties associated with supplying false documentation (in Spanish and English)

The ETS does not state how often you must provide this information, but if you make any changes to your policies, you should promptly communicate them.

Communication Tip: Employees are bound to have questions and hesitations when it comes to ETS. Stay in touch with how your team handles your new processes by taking quick pulse surveys, sending updates via video messages from HR and leadership, and engaging with one other in online community groups. 

What do employers need to know about testing and unvaccinated employees?

Employers can opt to allow workers to undergo weekly testing if they choose not to get vaccinated by the compliance deadline. Companies going this route should know that:

• Unvaccinated employees who work strictly from home or do not report to a workplace where other individuals are present do not need to submit to weekly COVID-19 testing.
• Partially vaccinated employees, or those who’ve only had one dose, are subject to weekly COVID-19 testing.
• Employees must submit to weekly COVID-19 testing as long as the ETS is in effect or get vaccinated.
• Employees who visit on-site locations infrequently, such as once a month, must be tested seven days before returning to the workplace and provide documentation upon arrival.
• No one testing positive should enter a workplace at any time until they provide a negative test.
• The ETS does not require employersto cover any of the costs associated with COVID-19 testing, but other laws or obligations may require it.
• Only unvaccinated employees undergoing weekly COVID-19 testing must wear a face covering under the ETS when indoors or when occupying a vehicle with another person for work purposes.
• Employers cannot prevent any vaccinated, partially vaccinated, or unvaccinated employee from willingly wearing a face covering if there is no mask policy in place.

What are some other special considerations to remember?

OSHA intends the ETS to preempt states, and political subdivisions of states, from adopting and enforcing workplace requirements relating to vaccines, face coverings, and COVID-19 testing, except under the authority of a federally approved state plan. Organizations that operate in multiple states may be subject to both federal OSHA and state OSHA plans. If you operate in multiple states, start researching and preparing for your varying requirements. Those operating in a state that has enacted legislation banning or limiting vaccine mandates should seek legal counsel to determine an appropriate course of action. 

As a general reminder, it is also wise to investigate whether you must comply with the terms of any collective bargaining agreement or other laws or regulations, especially regarding an employer’s obligation to pay for testing.

How can we make compliance easier?

Paylocity has built a COVID-19 Vaccination & Testing Tracking Solution to manage these requirements and ease the administrative burden of implementation. You can also count on us to continue supporting you with legislative updates and product support to help you stay in compliance and keep your employees informed, productive, and engaged.