OSHA ETS Reinstated

Employers with 100 or more employees are required to implement COVID-19 vaccinations or testing outlined in the Emergency Temporary Standard (ETS) by January 10, 2022.  

OSHA will use enforcement discretion with respect to compliance, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the ETS.

Although the vaccine mandate was upheld by the Sixth Circuit Court of Appeals on December 17, 2021, the case was taken up by the Supreme Court on January 7, 2022. The Supreme Court decision on whether to uphold the Sixth Circuit Court's decision is expected soon.  

1. Determine whether you are covered by the ETS: your workplace is normally covered by OSHA; has 100 or more employees; or is exempt because you are covered by the Healthcare ETS or Federal Contractor mandate. Employers in states with vaccine prohibitions or additional exemptions should consult Engage’s FAQs below. For many of these, federal law will prevail.  

2. Familiarize yourself with the ETS. Read through these FAQs.  

3. Collect information from employees about their vaccination status and set up your company’s employee vaccination and testing roster (see FAQs below). The percentage of vaccinated workers might help you determine whether you will mandate vaccines or provide the testing option. 

4. Communicate with employees that federal law requires your company to implement a mandatory vaccination or testing policy, and which of these policies you will be implementing on or before January 10, 2022 (download sample policy templates from OSHA’s ETS resource webpage).  

5. Be prepared for changes. Engage will notify clients of the expected Supreme Court decision.  

In the ETS, the following employers are required to comply:

• Private sector employers with at least 100 employees company wide.
• State and local government employers located in states where there are OSHA-approved state plans for health and safety.
• In the  ETS, employers with 100 or more employees, regardless of part-time, full-time or offsite/remote status are included. The requirement applies if the workforce reached 100 employees at any time while the ETS is in effect. Independent contractors are not included in the count. The count is based upon the total number of employees, regardless of the number of locations or where the locations are. If multiple employers have previously been considered a single employer for OSHA purposes, then all the employees count toward the 100-employee count

Current COVID protection rules for healthcare workers and federal contractors remain in place and those operators are not covered by the ETS. The Centers for Medicare & Medicaid Services (CMS) published a rule for healthcare workers that requires full vaccination by Jan. 4 and does not offer the testing policy as an option.  This rule is currently subject to ongoing litigation which is not addressed in these FAQ’s.

Most likely not, Federal government contractors covered by E.O. 14042 are not required to comply with the ETS, but that could change based on future litigation. This rule related to Federal government contractors is currently subject to ongoing litigation which is not addressed in these FAQ’s.  

Please consider the following:

• If you are a health care provider subjected to the OSHA ETS for Healthcare issued on June 17, 2021, then you must continue to comply with this mandate. If you are not covered by the OSHA ETS Healthcare mandate released in June 2021, please consider if you are a healthcare provider participating in Medicare and Medicaid programs. If so, you must comply with the rule issued by the Centers for Medicare & Medicaid Services (CMS) on November 4, 2021.  This rule is currently subject to ongoing litigation which is not addressed in these FAQ’s. 
• If neither apply, the healthcare facility is required to comply with the federal vaccination mandate or ETS. 

No, under the current state of the law.

The following listed workplaces are not covered under the ETS. 

• Workplaces that have 99 employees or less. 
• A workplace covered under the Safer Federal Workforce Task Force COVID-19 Workplace safety: Guidance for Federal Contractors and Subcontractors. 
• Public employers in states that do not have OSHA state plans; or 
• A workplace providing healthcare services or support when subject to the requirements for the Healthcare ETS. Please see the Centers for Medicare & Medicaid Services (CMS) requirements and requirements for healthcare facilities and professionals. The additional FAQs provided in this section includes information for healthcare centers that have providers that participate in Medicare and Medicaid programs.  
• Remote employees – working from home are not required to be vaccinated or test but are included in the 100-count. 
• Employees that do not report to a workplace where other individuals or customers are present are not required to be vaccinated or test but are included in the 100-count. 
• Employees who work exclusively outdoors are not required to be vaccinated or test but are included in the 100-count. 

The purpose of the ETS is to stop the spread of COVID in the workplace, so while the employer is required to adopt the policy, employees who never set foot in a workplace are not required to comply. Thus, an employer with 20 employees in the office and 80 remote employees is a covered employer, however, the employer is not required to obtain proof of vaccination or testing for those remote employees. Remote employees should still be maintained on the roster and listed as remote. 

The ETS applies to Federal OSHA states; for those states that have “state plans” the dates may vary but the rules are at minimum what is described in these FAQs. State Plan states include Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming and the Commonwealth of Puerto Rico. 

Copy of immunization records from a healthcare provider or pharmacy, copy of CDC vaccination card, copy of medical records that document vaccination, copy of immunization records from a state public health agency or tribunal immunization information system, copy of other official document that contains the employees name, date, type of vaccine, name of healthcare professional or clinic. The ETS requires full vaccination (two weeks after the second dose of a two-dose series). 

The employer should instruct the employee to contact the provider or organization that provided the vaccine and request a duplicate. As a last resort the employee can provide a written attestation that details when they were vaccinated, where they were vaccinated, the type of vaccine, and that the proof of vaccination is lost or cannot be provided, and the attestation 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.” 

The ETS requires a roster of employee vaccination. The roster and the individual vaccination records are considered medical records and should be kept separate from general personnel records and files. A model roster can be found here. 

OSHA is aware of this fraudulent activity and has indicated in the ETS that employers are not required to be watchdogs for this activity. However, if an employer knowingly allows the use of fraudulent vaccination records, then it would be prosecuted for fraud. 

The ETS allows for nuclear reaction testing (PCR) and/or antigen testing. Because the purpose is to identify active COVID infection, antibody testing is not permitted under any circumstances. Testing is either sent to a lab for results or administered by a healthcare professional for results. The ETS does not allow testing that is self-administered and self-read by the employee. 

The ETS left the decision regarding who pays for the testing to the employer. However, employer payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements. The ETS does not prohibit the employer from paying for costs associated with testing required by the ETS. Please note that the time spent by non-exempt employees taking a required COVID test under the ETS is likely compensable under existing FLSA guidance and under state wage and hour laws. 

The ETS mandatory vaccine or testing and masking policy template from OSHA can be found here. Clients who are not covered by the ETS should contact their HR Consultant if they wish to implement a policy. 

The ETS establishes minimum requirements. Employers should take note that collective bargaining agreements and state or local laws will also be applicable.  

1. Have the employee complete the Religious Accommodations Request Form. 
2. Decide whether the objection is based on a “sincerely held religious” belief or personal choice. The threshold inquiry to any request for a religious accommodation under federal law is whether the employee has a sincerely held religious belief, practice, or observance which prevents them from receiving the vaccine. Sincerely held religious beliefs “include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”  
3. Begin to engage in the Interactive Process. If you conclude that the employee’s objection to the vaccine is (or could be) grounded in an actual sincerely held religious belief, then you should engage in the Interactive Process which is a dialogue with the employee to determine what reasonable accommodation, if any, may be suitable for them and your organization. 
4. Decide whether the Company can accommodate the request and the best way to do so. 
5. Present your decision to the employee in writing and keep it as a record.

There are a few key principles to take into consideration: 

• First, you may end up concluding that there are no accommodations that are reasonable in nature that you can offer the employee, or that any workable accommodations they identify would cause undue hardship. 
• Second, even if one or more reasonable accommodations are identified, you are not obligated to provide the specific accommodation requested by the employee if you identify and offer them an effective alternative. 
• Third, you are not locked into whatever choice you end up making. You could grant an accommodation request and soon realize it’s not workable for some objective reason (that you also document). You are permitted to revisit accommodation requests and adjust as necessary. 
• For those employers covered under OSHA’s ETS, weekly testing is required for any employee who is unvaccinated for any reason, including for medical or religious reasons. 

This process is complicated, please do not hesitate to speak about it with your Engage HR Consultant.

Based on the guidance provided by the EEOC, employers must take into consideration that the applicant or employee may have a medical condition that qualifies him/her for a reasonable accommodation under the Americans with Disabilities Act. The employer should follow the following: 

• Step 1:  The applicant or employee must report that they have a medical condition or disability preventing them from taking the vaccine. 
• Step 2: The employer must then engage in the ADA Interactive Process to determine whether the employer can offer reasonable accommodation (i.e., the employee maintains employment without having to be inoculated.)  

See, What You Should Know About COVID-19, and the ADA, the Rehabilitation Act and other EEO Laws, Question K.5.  

This is ultimately up to each employer. What is reasonable for one employer may not be reasonable for another. However, some examples of reasonable accommodation would be: 

• Remote work. 
• Mask wearing; or 
• Adjustment of work duties. (Employers have no duty to change or remove the essential functions of the employee’s position as a means of providing reasonable accommodation.) 

For those employers covered under the ETS, weekly testing is required for any employee who is unvaccinated for any reason, including for medical or religious reasons. 

In the ETS, an employer is not required to offer reasonable accommodation when the unvaccinated employee would cause substantial harm or pose a great(er) threat to others. There are four factors an employer should consider in determining whether an employee poses a direct threat: 

• Duration of the risk; 
• Nature and severity of potential harm; 
• Likelihood potential harm will occur; and 
• Imminence of potential harm. 

The work environment may also play a role in determining whether there is a “direct threat.” Some factors impacting the work environment include:  

• Whether the employee works alone or with others or works inside or outside;  
• The available ventilation;  
• The frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees;  
• The number of partially or fully vaccinated individuals already in the workplace;  
• Whether other employees are wearing masks or undergoing routine screening testing; and  
• The space available for social distancing. 

Please discuss this with your Engage HR Consultant. 

Potentially, but it would need to be evaluated on a case-by-case basis. As a reasonable accommodation for an employee that must remain unvaccinated, an employer can offer as a reasonable accommodation for the employee to wear a mask on a daily basis when conducting essential functions of their position.  

Ultimately, reasonable accommodation will be created after the employer and employee engage in the mandatory Interactive Process under the ADA and Title VII (i.e., Religious Accommodation).  

For employers covered under the ETS, weekly testing is required for any employee who is unvaccinated for any reason, including for medical or religious reasons. 

Not necessarily. First, the employer should consider whether the employee can be removed from the workplace, but still able to perform their essential duties. The employer must determine whether there are any other employment rights that apply before termination can occur. Please discuss with your Engage HR Consultant. 

For employers covered under the ETS, weekly testing is required for any employee who is unvaccinated for any reason, therefore, it should not be denied as an accommodation for a person with medical or religious exemption requests. 

Possibly yes. If an employer has a mandatory vaccine policy without the option of weekly testing, and an employee is requesting a reasonable accommodation from taking the vaccine based on religion, the employer might have to pay for the cost associated with weekly testing for COVID-19. An individual determination should be made in each instance there is such a request to determine whether the costs associated with the testing would be determined to be an undue hardship. Under federal law, an employer must demonstrate that the religious accommodation would be more than a de minimis cost to establish an undue hardship. In such a scenario, you should contact legal counsel or your Human Resource Consultant at Engage for guidance. 

If, however, the employer gives its employees the option to either be vaccinated or participate in weekly COVID-19 testing, and the employer is not assuming the cost of testing, then the cost burden will likely be on the employee depending on state and local law. But keep in mind that an employer will likely need to bear the cost of testing for an employee in need of reasonable accommodation by law. 

OSHA intended for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing. We will monitor the litigation for this issue. 

Until a court determines otherwise, federal regulations will prevail in setting minimum standards.