OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard in the Courts – Now What?

November 9, 2021

This past September, President Joe Biden outlined his COVID-19 plan for the nation. As part of that announcement, the President stated that OSHA would be establishing an Emergency Temporary Standard (ETS) requiring employers to implement a vaccination program if they had over 100 employees. On November 4, 2021, the final version of this standard was released.

This ETS applies to all employers who have 100 or more employees on November 5, 2021 and forward as long as the standard remains in place. The requirements for these employers are as follows:

  • Employers must implement a COVID-19 vaccination policy that requires mandatory vaccination or allows employees to either get vaccinated or undergo weekly COVID-19 testing.
  • Employers must determine the vaccination status for each employee, obtain acceptable proof of vaccination from vaccinated employees, and maintain records and a roster of each employee.
  • All employers must support vaccination by providing up to 4 hours of paid time to receive each dose and up to 2 days to recover from any side effects from each dose.
  • Employers must ensure that employees who aren’t fully vaccinated are tested at least weekly (if in the workplace at least once a week) or within 7 days before entering the workplace.
    • The ETS does not require employers to pay for any costs associated with testing; however, there could be other labor laws, state requirements, or contractual agreements that may require the employer to pay.
  • Employees who are not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes.
  • Employees must be required to provide prompt notice when they test positive for COVID-19 or if they are diagnosed with COVID-19. Employees who have received a positive test or a COVID-19 diagnosis must immediately be removed from the workplace, regardless of their vaccination status and they must not be allowed to return until they meet certain return to work criteria.
  • Employers must provide employees with information about the requirements of the ETS, the company policy, information on vaccine efficacy, protections against retaliation and laws on knowingly supplying false information.
  • Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization.

The U.S. Court of Appeals for the Fifth Circuit granted an injunction delaying enforcement of the OSHA COVID-19 ETS after an emergency hearing on November 6, 2021. On November 8, 2021, the DOL/OSHA filed an appeal.

Now what? Below is a list of three action steps organizations should take right now, regardless of size.

  1. Assuming the two major policy options stay in place, organizations must select between either a) Mandated vaccinations or b) Vaccinations or weekly COVID testing. Organizations should use this time to draft a policy. Marsh McLennan Agency can assist organizations with templates for use in drafting a policy. Sample Employer Policy for Mandating the Vaccine and Sample Employer Policy for Providing Individual Choice with Weekly Testing
  2. Organizations must determine a strategy for tracking vaccinated employees and tracking any weekly COVID testing. There are a number of options available to employers. HR departments may track this information via an excel file, utilize paper forms, HR software such as ADP, Paycor, or Workday to list a few. Other options include third-party vendors such as Vital Check, US Wellness, Clear to Go, and Medikeeper to list just a few. Vendor services and pricing are often subject to change. Marsh McLennan Agency has resources that can help guide you in your decisions.
  3. Organizations will also need to determine how they will respond to request for a medical or religious exemption. Marsh McLennan Agency can assist with resources such as Guide Response for Medical Waiver, Medical Waiver template, Guide Response for Religious Waiver, and Religious Waiver template.

The full text of the OSHA standard can be found at https://www.osha.gov/coronavirus/ets2. In addition to the regulatory information on their site, OSHA has provided fact sheets and resources for finding vaccination sites and reasonable accommodations.

This remains a very fluid situation and Marsh McLennan Agency is following it very closely. For the most up to date information, you can follow us on LinkedIn. If you have any questions specific to your organization, please reach out to your Marsh McLennan Agency representative.


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