FAQs on OSHA COVID-19 Vaccination and Testing ETS: What Businesses Need to Know

The Occupational Safety and Health Administration (OSHA) published its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) on Nov. 5, 2021 that would require businesses with at least 100 employees to comply with the provisions.

After the ETS was enjoined in court in mid-November, leaving OSHA unable to compel or enforce compliance with the original requirement deadlines, the U.S. Court of Appeals for the Sixth Circuit ruled Dec. 17, 2021 to lift the stay. New deadlines were established for compliance with the ETS, although an appeal of the Sixth Circuit decision was heard by the U.S. Supreme Court on Jan. 7, 2022. Until a ruling is issued, the OSHA ETS remains in effect.

You might have questions about tracking and recordkeeping or costs and penalties. Paychex provides these FAQs to help you gain insight that could help you better prepare your business to meet its compliance obligations.

What are the basic requirements of the OSHA COVID-19 Vaccination and Testing ETS?

OSHA’s ETS requires employers with 100 or more employees to:

• Institute either a mandatory vaccination policy or a policy that gives covered employees the choice to either get vaccinated or be tested weekly and wear a mask at work
• Provide paid time off at the employee’s regular rate of pay to get vaccinated (up to four hours per dose)

• Provide paid sick leave for reasonable time to recover from the side effects of each dose of the vaccine

The requirements of the ETS don’t apply to certain employees, including those who work from home, primarily work outdoors and who don’t report to a workplace where other individuals are present.

The ETS also requires that employers provide relevant information to employees to help ensure they understand their rights and responsibilities under the ETS, as well as their employer’s policies and procedures.

Effective Date of OSHA ETS

What are the compliance deadlines of the ETS?

Except in states that have their own OSHA-approved State Plans, employers have until Jan. 10, 2022 to comply with most provisions of ETS, including developing a written policy and notifying employees of the policy, and have until Feb. 9, 2022 to comply with the testing requirements.

Penalties

What are the penalties for noncompliance with the ETS?

The current penalty for an OHSA violation is just under $14,000 per violation. OSHA may treat multiple infractions of a provision (such as multiple instances of employees failing to wear masks) as a single violation if an employer is making good faith efforts to comply, but it may penalize each single infraction with a separate penalty if it finds egregious violations.

Penalties can increase tenfold for repeated or willful violations or if the offending employer does not remediate the situation.

Counting

Which employees count toward the minimum threshold of 100?

Employers must include all employees across all their U.S. workplaces, regardless of vaccination status. This includes all part-time employees, temporary and seasonal employees, and employees who work at home or remotely. The count should be done at the firm or corporate-wide level, not at the individual location level.

Not included in this count are independent contractors and persons employed by staffing agencies (and not the employer) who are placed by a staffing agency to work at the employer’s location.

What if the employer’s workforce fluctuates?

Employers should count their employees as of the ETS effective date of Nov. 5, 2021. However, if an employer employs at least 100 employees at any time while the ETS is in effect, the ETS will apply from that point on, even if the employee number later drops below 100.

Exemptions to the ETS

What if a business is in a state that has its own OSHA-approved State Plan?

Currently 21 states and a territory have OSHA-approved State Plans regulating private sector employers. (Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Tennessee, South Carolina, Utah, Vermont, Virginia, Washington, Wyoming, and Puerto Rico). Employers in these states will be subject to the State Plans rather than the ETS, but these State Plans must enact rules that are either identical to or at least as effective as the ETS.

Those states and the territory have 30 days to adopt the federal ETS or a regulation that is at least as effective, and 15 days to inform OSHA of the action they will take.

State Plans could include different deadlines, and it is possible that the states and OSHA may need to work through issues before the state rules take effect. However, employers should consider preparing now, as the State Plan rules will be identical to or, potentially in some cases, stricter than the ETS.

What if an employer is already subject to another federal vaccine mandate?

The ETS does not apply to workplaces where employees are covered under the federal contractor vaccination requirements (Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors), Centers for Medicare & Medicaid Services (CMS) vaccine mandate, or in settings where employees are covered by OSHA’s June 21, 2021 Healthcare ETS.

What if a state has a regulation or rule contrary to the ETS?

OSHA’s position is that the ETS preempts any state or local requirements that ban or limit an employer from requiring vaccination, face coverings or testing. However, state, and local authorities may take a different position. Employers with employees in these states should consult with their legal counsel.

Vaccination and Proof

Are employees who have had COVID-19 considered vaccinated?

No, under the ETS, employees who have had COVID-19 are not considered vaccinated, regardless of any “natural immunity” or the presence of antibodies from a previous infection.

What proof of vaccination is required?

Under the ETS, acceptable proof of vaccination includes one of the following:

• the record of immunization from a health care provider or pharmacy
• a copy of the U.S. 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)

What if the employee cannot provide proof of vaccination?

If an employee cannot provide a copy of the COVID-19 vaccination record (e.g., because it was lost or stolen) they can get a new copy from where they received their vaccine, or, if applicable, from their state health department’s immunization information system. If this is not possible, a signed and dated statement by the employee will be acceptable if it meets certain requirements. An employee’s statement must:

• attest to their vaccination status (fully vaccinated or partially vaccinated)
• attest that they have lost or are otherwise unable to produce proof required by the standard
• 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.”

Additionally, the statement must:

• include (to best of recollection) 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).
• attest that the employee is unable to produce another type of proof of vaccination (the employee must have attempted to secure alternate forms of documentation via other means and been unsuccessful).

How should employers treat vaccination records?

All vaccination records, including rosters of employee vaccination status, are considered to be employee medical records, and must be maintained as confidential medical records as required under applicable laws.

Do employers have to pay for employee time spent getting vaccinated?

Yes. Employers must provide a reasonable amount of time to each employee for each of their primary vaccination dose(s), and this includes up to 4 hours of paid time at the employee’s regular rate of pay when an employee receives a vaccine during work hours. Employers may not require employees to use other forms of accrued paid time off, such as sick leave, vacation, or Paid Time Off, for this purpose.

However, if an employee chooses to receive a COVID-19 vaccination outside of work hours, under the ETS employers are not required to grant paid time to the employee for the time spent to receive the vaccine.

Employers should review state and local requirements, which may require employers to provide more paid time off than is required by the ETS.

Do employers have to pay for time spent recovering from a vaccination?

Under the ETS, if an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects experienced following each of their primary vaccination doses. If an employer does not specify between different types of leave (i.e., employees are granted only one type of leave), the employer may require employees to use that leave when recovering from vaccination side effects. However, if an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects.

Employers cannot require employees to use advance sick leave to cover reasonable time needed to recover from vaccination side effects or require an employee to go into the negative for paid sick leave if the employee does not have accrued paid sick leave.

The ETS does not specify the amount of paid sick leave that the employer is required to provide. Employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be reasonable. Generally, OSHA presumes that and employers would be in compliance if they make available up to two days of paid sick leave for side effects after each primary vaccination dose. This is in addition to the up to four hours of paid time to receive each primary vaccination dose.

Employers should review state and local requirements, which may require employers to provide more paid time off than required by the ETS.

Testing

What Type of Testing is Required?

According to the OSHA ETS, the COVID-19 test must be:

• Cleared, approved, or authorized, including in an Emergency Use Authorization, by the Food and Drug Administration to detect current infection with the SARS-CoV-2 virus (e.g., a viral test)
• Administered in accordance with the authorized instructions
• Not both self-administered and self-read, unless observed by the employer or an authorized telehealth proctor

Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens that are processed individually or as pooled specimens), proctored over-the-counter tests, point-of-care tests, and tests where specimen collection and processing is done or observed by an employer.

When must testing occur?

Employees who are not fully vaccinated and present in the workplace at least once a week must submit to testing at least weekly, or within seven days before returning to work if away from the workplace for a week or longer.

For individuals who have received a positive COVID-19 test or who have been diagnosed with COVID-19, the ETS provides an exception from testing for the 90-day period following the positive diagnosis or test.

What if an employee tests positive for COVID-19?

Regardless of vaccination status, employees who test positive for COVID-19 or who are diagnosed with COVID-19 by a healthcare provider must be removed from the workplace until they meet certain return-to-work criteria. The ETS does not require employers to provide paid leave to employees who are removed from the workplace, but acknowledges that other laws may impose such obligations. Employers should review state and local requirements, which may require employers to provide paid time off.

Who pays for testing?

The ETS does not require employers to pay for costs associated with testing, but does not prohibit it. However, payment for testing may be required by other laws. For example, if an employee cannot be vaccinated due to a medical condition or a sincerely held religious belief, employers may need to pay for testing offered as a reasonable accommodation. State or local law may require employers to pay the cost of any required medical exams, tests or requirements for the reimbursement of certain employee expenses. Passing on the cost of testing could also implicate wage and hours laws.

What should employers do with COVID-19 test results? 

Each COVID-19 test result must be maintained as a confidential medical record as required under applicable law.

Policy

Does the ETS require covered employers to have a written policy?

An employer must have a written policy providing for either a mandatory vaccine program or for a vaccinate or testing and masking program. OSHA has provided sample policies on its ETS page.

What must an employer include in its policy?

Policies for mandatory vaccination must address certain provisions of the ETS, including:

• requirements for vaccination
• exclusions to vaccination permitted by the ETS (medical contraindications, medical reason for delay, or accommodations for disabilities or religious beliefs)
• determination of vaccination status and how this information will be collected
• paid time and sick leave for vaccination and recovery
• notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace
• how the employer is providing employees with information the ETS requires must be disseminated to all employees (e.g., the CDC publication “Key Things to Know About COVID-19 Vaccines”)
• disciplinary action for those who do not comply with the policy

For employers that choose to offer a testing and masking option as opposed to a mandatory vaccine program, the policy must also include information regarding the testing and masking protocol.

In addition, the policies must include the effective date, who the policies apply to, deadlines and procedures for compliance and enforcement.

Recordkeeping and Reporting

What other records are employers required to keep?

In addition to their written policy, employee vaccination records and COVID-19 test results, employers must create and maintain a roster of all employees and their vaccination status. The roster must list all employees regardless of vaccination status, and clearly indicate, for each employee, whether:

• they are fully vaccinated
• partially (not fully) vaccinated
• not fully vaccinated because of a medical or religious accommodation, or
• not fully vaccinated because they have not provided acceptable proof of their vaccination status

Do employers need to report on COVID-19 cases in the workplace?

Employers are required to report to OSHA work-related COVID-19 hospitalizations within 24 hours of learning about the hospitalization and report work-related COVID-19 fatalities within 8 hours of learning about the fatality.

Paychex Can Help

Tracking and managing COVID-19 vaccination and testing results could become a hassle for businesses. Working with a provider such as Paychex that has solutions and tools can provide time-saving efficiencies and help keep your compliance obligations more manageable.