--- url: 'https://www.fmjlaw.com/osha-emergency-temporary-standard-on-covid-19-vaccination-and-testing/' title: OSHA Emergency Temporary Standard on COVID-19 Vaccination and Testing author: name: Georgie Stocks url: 'https://www.fmjlaw.com/author/gstocks/' date: '2021-11-06T14:44:49+00:00' modified: '2021-11-06T15:03:34+00:00' type: post categories: - COVID-19 Resource - COVID-19 Resource - Legal Alert - Legal Alert - Newsroom - Thought Leadership image: 'https://www.fmjlaw.com/wp-content/uploads/2021/11/AdobeStock_425320825-e1636210612370.jpeg' published: true --- # OSHA Emergency Temporary Standard on COVID-19 Vaccination and Testing As you likely know, President Biden announced in mid-September a number of new federal initiatives aimed at combating the COVID-19 pandemic. Among other things, the President stated that the U.S. Occupational Safety and Health Administration (OSHA) would be promulgating an Emergency Temporary Standard (ETS) that would require certain private employers to implement new policies surrounding COVID-19 vaccines. Less than two months later, OSHA has now completed its initial version of the ETS and published it for public review yesterday. The ETS went into effect immediately, and covered employers will have thirty days to comply with many of the requirements, as explained further below. FMJ’s [HR & Employment](https://www.fmjlaw.com/practice-area/hr-employment/) practice group has been following the developments around the ETS closely, and we are here to assist employers as they prepare to implement the new requirements. The ETS is already facing multiple legal challenges and the situation may continue to develop. In the meantime, here are some highlights of what it currently requires: - The ETS covers employers that have 100 or more employees (whether full-time or part-time), regardless of each employee’s location. Remote employees and employees who work at smaller locations are counted for purposes of determining whether this minimum threshold is met. While the minimum threshold is 100 employees, OSHA is exploring the possibility of expanding this scope in the future to include smaller employers as well.  - The ETS provides covered employers with two options: Implement a mandatory vaccination policy for all employees, with limited exceptions for employees who are eligible for a reasonable accommodation due to a medical circumstance or sincerely held religious belief, as well certain exclusions which are referenced further below; or - Implement an alternative policy that encourages vaccinations but permits employees to opt-out by committing to be tested for COVID-19 at least once each week and wearing a mask in most situations in the workplace.   - Whether to implement a mandatory vaccination policy or an alternative policy is within the discretion of the employer – employees will not have the option to decline the vaccine and elect testing if their employer implements a mandatory vaccination policy. - The ETS took effect yesterday. Covered employers have until December 6, 2021, to comply with most of its requirements, and required testing for unvaccinated employees must begin by January 4, 2022.  - OSHA has indicated that the ETS is intended to preempt any inconsistent state or local requirements, including laws in a few states which purport to prohibit employers from implementing vaccine requirements. States that have their own state OSHA plans, including Minnesota and a number of others, will have thirty days to either adopt the ETS or implement standards at least as effective as those set forth in the ETS. Minnesota’s Department of Labor and Industry has indicated that it intends to notify federal OSHA of its plan within fifteen days.  - The ETS does not require employers to pay for the cost of weekly testing or masks going forward for any employee who decides to remain unvaccinated in accordance with an alternative policy. Employees may be required to bear the burden of these costs unless another federal, state, or local law (or an employer’s collective bargaining agreement) requires otherwise.  - The ETS does, however, require employers to provide a reasonable amount of paid time off for employees to get the vaccine (up to four hours of paid time per employee for this purpose), as well as reasonable paid sick time for employees to recover from an illness or injury resulting from the vaccine. - Employers are subject to certain recordkeeping requirements under the ETS. Among other things, employers must determine the vaccination status of each employee, including whether the employee is fully vaccinated or partially vaccinated (regardless of which policy option the employer implements). Employees who are vaccinated will be required to provide suitable proof of vaccinated status to the employer. What constitutes suitable proof is specifically defined in the ETS. For any employees who remain unvaccinated, the employer will be responsible for monitoring and enforcing consistent mask use (subject, of course, to exemptions that may apply to eligible employees). - The ETS clarifies that its requirements do not apply to workplaces that are subject to certain other federal vaccination regulations that have been implemented recently, such as the ETS for healthcare employers under 29 CFR §1910.502 or the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. - The scope of the ETS also excludes certain employees, including those: (i) who do not report to a workplace where other individuals are present (coworkers, other workers or customers, for example); (ii) while working from home; or (iii) who work exclusively outdoors. For employers that implement an alternative policy, the frequency of testing required for any particular employee will depend on how frequently the employee reports to a work location where other individuals are present. **Our team is continuing to monitor developments surrounding the ETS and is available to answer your questions or assist with policy recommendations as needed. ** Please contact [Shannon McDonough](https://www.fmjlaw.com/professional/shannon-m-mcdonough/) at [shannon.mcdonough@fmjlaw.com](mailto:shannon.mcdonough@fmjlaw.com), [Heidi Carpenter](https://www.fmjlaw.com/professional/heidi-a-carpenter/) at [heidi.carpenter@fmjlaw.com](mailto:heidi.carpenter@fmjlaw.com), or [Natolie Hochhausen](https://www.fmjlaw.com/professional/natolie-s-hochhausen/) at [natolie.hochhausen@fmjlaw.com](mailto:natolie.hochhausen@fmjlaw.com) to discuss how we may be able to assist your business. [](https://www.addtoany.com/add_to/facebook?linkurl=https%3A%2F%2Fwww.fmjlaw.com%2Fosha-emergency-temporary-standard-on-covid-19-vaccination-and-testing%2F&linkname=OSHA%20Emergency%20Temporary%20Standard%20on%20COVID-19%20Vaccination%20and%20Testing)[](https://www.addtoany.com/add_to/twitter?linkurl=https%3A%2F%2Fwww.fmjlaw.com%2Fosha-emergency-temporary-standard-on-covid-19-vaccination-and-testing%2F&linkname=OSHA%20Emergency%20Temporary%20Standard%20on%20COVID-19%20Vaccination%20and%20Testing)[](https://www.addtoany.com/add_to/email?linkurl=https%3A%2F%2Fwww.fmjlaw.com%2Fosha-emergency-temporary-standard-on-covid-19-vaccination-and-testing%2F&linkname=OSHA%20Emergency%20Temporary%20Standard%20on%20COVID-19%20Vaccination%20and%20Testing)[](https://www.addtoany.com/add_to/linkedin?linkurl=https%3A%2F%2Fwww.fmjlaw.com%2Fosha-emergency-temporary-standard-on-covid-19-vaccination-and-testing%2F&linkname=OSHA%20Emergency%20Temporary%20Standard%20on%20COVID-19%20Vaccination%20and%20Testing)