Federal OSHA Vaccination and Testing Requirements

The Occupational Safety and Health Administration (OSHA) released on November 4 and December 27, 2021, details of an emergency temporary standard (ETS) regarding the COVID-19 vaccination and testing requirement for employers with 100 or more employees. The ETS applies to state and local employers in states with OSHA-approved state plans, including Kentucky. Kentucky, as an OSHA state plan, will have 30 days from the effective date of the ETS to adopt or release their version of the ETS, as long as it is “at least as effective” as the federal version (29 USC 667(c)).

To help you determine if your city qualifies as having 100 or more employees, OSHA provided a summary of the ETS and FAQs. Also, note that if an employer has less than 100 employees as of the effective date of the ETS, but the number increases to 100 or more at any point, the employer must come into compliance with the ETS and remain in compliance regardless of any fluctuation.

Employees included in the count are as follows:

• All employees that work for the workplace in all locations, including offsite and remote employees;
• Part-time employees; and 
• Temporary and seasonal workers employed directly by the employer (i.e., not obtained from a temporary staffing agency), provided they are employed at any point while the ETS is in effect. 
• Employees not considered within the count include those from temporary staffing agencies and independent contractors. In addition, we are waiting for clarification on whether to include elected officials.

What we know so far from the OSHA ETS for applicable employers is below.

• The deadline for implementation is January 10, 2022, which includes:

1. Developing a written vaccination and/or weekly testing requirement and a face covering policy.
   1. A “face covering” means a covering that: 
      1. Completely covers the nose and mouth;
      2. Is made with two or more layers of tightly woven breathable fabric (i.e., fabrics that do not let light pass through when held up to a light source); 
      3. Is secured to the head with ties, ear loops, or elastic bands behind the head. If gaiters are worn, they should have two layers of fabric or be folded to make two layers; 
      4. Fits snugly over the nose, mouth, and chin with no large gaps on the outside of the face; and 
      5. Is a solid material without slits, exhalation valves, visible holes, punctures, or other openings.
2. Exceptions within the policy exist for those employees for whom:
   1. A vaccine is medically contraindicated;
   2. Medical necessity requires a delay in vaccination; or 
   3. Those 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. Note that the EEOC updated their COVID-19 guidance on religious accommodations on October 25, 2021. The EEOC has also provided employers with a sample religious accommodation request form.
3. Employers must determine the vaccination status of all employees and maintain a list. The following list includes the acceptable documentation for proof of vaccination:
   1. The record of immunization from a health care provider or pharmacy;
   2. A copy of the U.S. COVID-19 Vaccination Record Card;
   3. A copy of medical records documenting the vaccination;
   4. A copy of immunization records from a public health, state, or tribal immunization information system; or
   5. 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).
   6. If an employee has misplaced the proof of vaccination, they may attest to being fully vaccinated, which will suffice until they receive a replacement card.
   7. Employers must maintain all records during the period the ETS is in effect, and those records are confidential.
4. Allow employees four hours of paid time to receive each vaccination, as well as a reasonable time to recover from any side effects of the vaccine. 
   1. OSHA has indicated that if an employer provides up to two days to recover from the side effects, they will be considered in compliance.
   2. Employers may require employees to use paid sick leave benefits otherwise provided by the employer to offset these costs, if available.
      
5. If including a testing requirement, beginning on February 9, 2022, employers should ensure that testing of unvaccinated employees occurs weekly and within seven days before the employee returns to work if he or she has been away from the workplace for a week or longer.
   1. Under the ETS, a “COVID-19 test” must be a test for SARS-CoV-2 that is:
      1. Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
      2. Administered per authorized instructions; 
      3. Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor; and
      4. An over-the-counter test that features digital reporting of date and time stamped results. These digitally read tests are not considered to be “self-read” and therefore do not require observation by the employer or an authorized telehealth proctor to satisfy the standard. 
   2. Employees who fail to test must be removed from the workplace.
   3. Employers must maintain records of all testing, as well as a roster of all vaccinated and unvaccinated employees, during the period the ETS is in effect.
   4. Employers must provide the following:
      1. An employee’s own individual COVID-19 vaccine documentation or COVID-19 test results, by the end of the next business day to that employee or to anyone having the written authorized consent of that employee when requested.
      2. Upon request by an employee or employee representative, by the end of the next day after the request, the aggregate number of fully vaccinated employees at the workplace along with the total number of employees at the workplace.
      3. To OSHA within four business hours of a request, the employer’s written policy required by the ETS, and the aggregate number of fully vaccinated employees at the workplace along with the total number of employees at the workplace; 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.
6. Employers are not required to pay for or provide the COVID-19 tests. However, employer payment for testing may be required by other laws¹, regulations, or collective bargaining agreements or other collectively negotiated agreements. OSHA also notes that the ETS does not prohibit the employer from paying for costs associated with testing required by the ETS. Otherwise, the agency leaves the decision regarding who pays for the testing to the employer.
   
7. Whether or not the time it takes to test is compensable is not entirely known. However, the DOL noted in a briefing that it would be publishing additional guidance on the compensability of testing time. Current DOL guidance suggests that testing at the direction of the employer and during work time is compensable.
   

• Fully vaccinated is two weeks after receiving the second Pfizer or Moderna vaccine or two weeks after receiving the one Johnson & Johnson vaccine.
  
• The deadline for all unvaccinated workers to begin wearing facemasks is January 10, 2022.
  
• Include requirements for notification and removal from the workplace, no matter the employee's vaccination status, when the employee receives a positive COVID-19 test or diagnosis from a healthcare provider until the employee: 
  1. 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;
  2. Meets the return to work criteria in CDC’s “Isolation Guidance,” which was updated on December 27, 2021 (incorporated by reference, § 1910.509); or
  3. Receives a recommendation to return to work from a licensed healthcare provider.

• Employers are not required to pay for time off when they are removed from the workplace. However, other laws may require paid time, and employees may use accrued paid leave. Additionally, employers may provide paid COVID-19 related leave, such as with the Healthcare ETS issued June 2021.

• Employers must provide information specific to the ETS in a language and literacy the employee understands. The information must include: 

1. Any employer policies on vaccinations;
2. The process that will be used to determine employee vaccination status;
3. The time and pay/leave they are entitled to for vaccinations and any side effects experienced following vaccinations;
4. The procedures they need to follow to provide notice of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider;
5. The procedures to be used for requesting their testing records and the aggregate number of vaccinated employees;
6. Additional information for unvaccinated employees, including information about the employer’s policies and procedures for COVID-19 testing and face coverings;
7. Information on COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated (by providing the document, “Key Things to Know About COVID-19 Vaccines”);
8. 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 work-related injuries or illnesses, and for exercising rights under, or as a result of actions that are required by, the ETS, as well as retaliation for filing an occupational safety or health complaint, reporting a work-related injuries or illness, or otherwise exercising any rights afforded by the OSH Act (fact sheet available); and
9. The OSH Act’s prohibitions provide criminal penalties associated with knowingly supplying false statements or documentation (fact sheet available).

• Employee exceptions to the ETS include those who work remotely or exclusively outdoors.
  

• Failure to comply with the rule will subject employers to maximum penalties of $13,653 per serious violation, and $136,532 per willful or repeated violation.

As far as the timeline, the federal ETS is effective immediately upon publication in the Federal Register. For Kentucky, adoption of this ETS, or an ETS that is as effective as this ETS, must be completed within 30 days of the final federal rule.

KLC is monitoring the ETS and will review any information from Kentucky once it has been released. For a sample policy, as well as documents to assist in the implementation, contact KLC Personnel Services Manager Andrea Shindlebower Main or any KLC Municipal Law Department member.

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¹See KRS 336.220, which requires Kentucky employers to pay for employee testing required by the employer. Note that this statute was interpreted by OAG 91-1 to not apply to public employers. Public agencies should work closely with their attorney to decide how to handle payment for medical tests.