ETS Summary provided for FMI by Eric Conn of Conn Maciel Carey
Who is affected?
Employers with 100 or more employees employed on or after the date the ETS took effect, which is the date it was published (November 5, 2021). A corporate entity with multiple locations must count all employees, even if they work in a location with fewer than 100 workers. Employers with less than 100 employees who add more workers to their payroll during the effective period will be subject to the ETS requirements if they meet or exceed 100 workers.
Does the ETS affect all employees?
- Yes – Yes, even if there are fewer than 100 workers at a location, and if the employer’s total employee count exceeds 100, all employees must comply with the ETS.
- No – No, the ETS does not apply to workers who report to a workplace where there are no other people present such as coworkers and customers, employees that work from home, and workers who work exclusively outdoors. Please note, the ETS’s definition of a worker that works exclusively outdoors is very narrow, (see pages 203-204 of the ETS explanation).
When does the OSHA ETS take effect? (UPDATED 12/18/21)
The ETS technically took effect the day it was published, on November 5, 2021. As far as enforcement dates, employers must have an employee roster that includes employees’ vaccination status and proof of vaccination by Jan. 10, 2022. Employers must meet all requirements by Jan. 10, 2022. Unvaccinated or not fully vaccinated workers must begin weekly COVID-testing starting Feb. 9, 2022. (The previous enforcement dates of Dec. 5 and Jan. 4 were modified by OSHA after the 6th Circuit Court of Appeals on vacated a previous court-issued stay on Dec. 17.)
Employee vaccination policy required:
Employers must create a mandatory vaccination policy for all employees, including new employees who join during the effective period to be fully vaccinated unless employees meet one of the following exemptions:
- For whom a vaccine is medically contraindicated:
- For whom medical necessity requires a delay in vaccination; or
- Who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
Under federal law, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, workers may be entitled to a reasonable accommodation from their employer, absent undue hardship. If the worker requesting a reasonable accommodation because of a disability, as defined by the ADA, or a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation. For more information about evaluating requests for reasonable accommodation for disability or sincerely held religious belief, employers should consult the Equal Employment Opportunity Commission’s regulations, guidance, and technical assistance. Information on Title VII and COVID-19 vaccinations is available here.
Required information to be provided to all employees:
The employer must inform each employee, in a language and at a literacy level the employee understands, communicating all of the following items:
- The requirements of this new OSH Act section (see pdf pages 473-490) as well as any employer policies and procedures established to implement this section;
- COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document, “Key Things to Know About COVID-19 Vaccines;”
- The requirements of 29 CFR 1904.35(b)(1)(iv), which prohibits the employer from discharging or in any manner discriminating against an employee for reporting a work-related injury or illness, and section 11(c) of the OSH Act, which prohibits the employer from discriminating against an employee for exercising rights under, or as a result of actions that are required by, this section. Section 11(c) also protects the employee from retaliation for filing an occupational safety or health complaint, reporting a work-related injury or illness, or otherwise exercising any rights afforded by the OSH Act; and
- The prohibitions of 18 U.S.C. 1001 and of section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation.
- Section 17(g): “Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this Act shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or by both.”
Required information is compiled and available here.
What records will employers need to maintain under the ETS?
Employers must create and maintain a roster of all employees and their current COVID-19 vaccination status. Proof of vaccination status must be kept as well as each testing result for unvaccinated or not fully vaccinated employees. These records and roster must be maintained as long as the ETS is in place and must be treated as medical records (subject to protection under HIPAA and privacy laws).
What counts as valid, acceptable proof of vaccination status?
- The record of immunization 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; or
- 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).
What if an employee doesn’t have proof of their vaccination status?
If an employee cannot provide proof, they may sign and date a statement (using the language below). The statement must clearly state that the employee will be subject to criminal penalties for knowingly providing false information attesting to their vaccination status (fully vaccinated or partially vaccinated); and attesting that they have lost and are otherwise unable to produce proof required by the ETS.
Employees who do not provide one of the acceptable forms of proof of vaccination status to the employer must be treated as not fully vaccinated for the purpose of the ETS.
The statement must include the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
An employee who attests to their vaccination status should, to the best of their recollection, include the following information in their attestation: 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).
Guidance on ETS Implementation
Mandatory paid time off for vaccination and recovery:
Employers must provide a reasonable amount of time to employees for vaccination series dose(s) and up to 4 hours paid time, including travel time, at the employee’s regular rate of pay for this purpose. The employer must also provide reasonable time and paid sick leave to recover from side effects that an employee may experience after each dose.
If an employee chooses to receive the vaccine outside of work hours, OSHA does not require employers to grant employees paid time off for the time spent receiving the vaccine during non-work hours. Employers may require employees to use paid sick leave benefits otherwise provided by the employer to offset these costs, if available.
COVID testing requirements for unvaccinated/not fully vaccinated workers:
- Workers who regularly report at least once a week to the workplace: An employee who reports at least once every 7 days to a workplace where other individuals, such as coworkers or customers, are present must be tested for COVID-19 at least once every 7 days and must provide documentation of the most recent COVID-19 test result to the employer no later than the 7th day following the date on which the employee last provided a test result.
- Workers who not regularly report to work in person must be tested for COVID-19 within 7 days prior to returning to the workplace and provide documentation of that test result to the employer upon return to the workplace.
If an employee does not provide documentation of a COVID-19 test result as required, the employer must keep that employee removed from the workplace until they provide a test result.
There is no requirement in the rule that the employer must pay for this test. The ETS also does not require the employer to provide paid time off to any employee for removal because of the employee’s refusal/failure to provide documentation of a COVID-19 test result as required by the ETS.
When an employee has received a positive COVID-19 test result or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer may not require that employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis.
Finally, the employer must maintain a record of each test result either provided by the employee or obtained during tests conducted by the employer.
Face covering requirement for unvaccinated or not fully vaccinated employees:
Employers must ensure that an employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes.
Unvaccinated or not fully vaccinated individuals may work without a face covering when alone in a room with floor to ceiling walls and a closed door, while the employee is eating or drinking, when needed for identification purposes, or when wearing a respirator or facemask.
Employers must ensure employees wear face coverings and face masks properly. They must also allow the voluntary use of face coverings, masks, respirators by all employees and customers. Employers may require all customers or visitors to wear face coverings if they so choose.
The ETS does not require the employer to pay for any costs associated with face coverings.
When an employee tests positive for COVID (regardless of vaccination status):
Regardless of COVID-19 vaccination status or any COVID-19 testing required, the employer must require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider and immediately remove them from the workplace.
The employee cannot return to work until the employee:
- Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
- Meets the return to work criteria in CDC’s “Isolation Guidance;” or
- Receives a recommendation to return to work from a licensed healthcare provider.
The ETS does not require employers to provide paid time off to any employee for removal from the workplace as a result of a positive COVID-19 test or diagnosis of COVID-19.
Reporting of COVID-19 related deaths and in-patient hospitalizations to OSHA:
The employer must report to OSHA:
- Each work-related COVID-19 fatality within 8 hours of the employer learning about the fatality.
- Each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.
Employers have a few options for reporting work-related fatalities and in-patient hospitalizations to OSHA. Please note that Michigan is a state plan state and different rules apply:
- To report a work-related fatality, please call the Michigan Occupational Safety and Health Administration (MIOSHA) Fatality Hotline at 800-858-0397.
- To report an employee’s work-related in-patient hospitalization, please call the MIOSHA toll-free line at 844-464-6742
- To report via electronic submission, use the reporting application located on MIOSHA’s public website at https://forms.leo.state.mi.us/miosha-incident-report/.
Making records available upon request:
- Employee requests: By the end of the next business day after a request, the employer must make available, for examination and copying, the individual COVID-19 vaccine documentation and any COVID-19 test results for a particular employee to that employee and to anyone having written authorized consent of that employee. In addition, under paragraph 1910.501(l)(2) of the ETS, by the end of the next business day after a request by an employee or an employee representative, the employer must make available to the requester the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
- OSHA requests: The employer must also provide for examination and copying:
- Within 4 business hours of a request, the employer’s written vaccine policy required by paragraph (d) of the ETS, and the aggregate numbers described in paragraph (l)(2) of the ETS; and
- By the end of the next business day after a request, all other records and other documents required to be maintained by the ETS.