OSHA ETS Suspended

as of 11/17/2021

This page provides updates to OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).

The ETS order is currently “stayed” meaning that until the 6th Circuit Court of Appeals makes a decision, the law is on hold. Engage recommends clients familiarize themselves with the potential requirements.

OSHA is holding off on implementation and enforcement of this ETS until the court proceedings are resolved. Clients should familiarize themselves with the potential requirements and FAQs outlined below. However, please note that these may change.

In the original ETS, now on hold, 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 original ETS, now on hold, employers with 100 or more employees, regardless of part-time, full-time or offsite/remote status were included. The requirement would have applied if the workforce reached 100 employees at any time while the ETS is in effect. Independent contractors were not included in the count. The count was to be 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 were to count toward the 100-employee count.

Current COVID protection rules for healthcare workers and federal contractors remain in place and those operators would not have been 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.

Most likely not, Federal government contractors covered by E.O. 14042 were not required to comply with the original ETS, but that could change based on the litigation.

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.
  • If neither apply, the healthcare facility will be required to comply with the outcome of the litigation.

Other federal mandates such as FMLA, EEO-1s and ACA do not use PEO head count to calculate the 100-employee threshold. Hopefully, that will be the case when the litigation concludes.

Employer or Entity Type 

Employees included in 100-employee threshold under the original ETS, now on hold 

Single corporate entity with multiple locations 

All employees at all locations 

Franchisor-Franchisee Relationship 

Franchisor and franchisee would be treated as separate entities. Franchisor would only count corporate employees in its headcount. Franchisee would only count the actual number of employees at its respective location for the purpose of this ETS. 

Two or more related entities handling safety matters as one company 

All employees at both or all entities. 

Staffing agency relationship 

Only the staffing agency would count the jointly employed workers (those placed onsite with a host-employer) to determine whether they meet the threshold amount. The host employer would be covered by the ETS only if it has at least 100 employees that are not part of the agency relationship.  

Multi-site employer (i.e., construction site) – a worksite that hosts more than one company 

Each individual company counts its own employees regardless of where they are reporting to work. Worksite employees are included in their employer’s overall corporate-level count. 

  

  

The following listed workplaces are not covered under the original ETS, now on hold. 

  • 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 were not required to be vaccinated or test but were to be included in the 100-count. 
  • Employees that do not work report to a workplace where other individuals or customers are present were not required to be vaccinated or test but were to be included in the 100-count. 
  • Employees who work exclusively outdoors were not required to be vaccinated or test but were to be included in the 100-count. 

The purpose of the original ETS was to stop the spread of COVID in the workplace, so while the employer was required to adopt the policy, employees who never set foot in a workplace were not required to comply. Thus, an employer with 20 employees in the office and 80 remote employees was a covered employer, however, the employer was 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 original ETS applied to Federal OSHA states; for those states that have “state plans” the dates may vary but it is anticipated that the rules will be at minimum what is described in these FAQs. State Plans 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 original ETS, now on hold, requires full vaccination (two weeks after the second dose of a two-dose series).  

In the original ETS, now on hold, 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 original ETS required 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.

 Download the Model Roster here .  

OSHA is aware of this fraudulent activity and has indicated in the original ETS that employers would not be 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. 

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

The original ETS, now on hold, 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 original ETS did 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 original ETS was likely compensable under existing FLSA guidance and under state wage and hour laws.  

The original ETS mandatory vaccine policy templates from OSHA are linked here. Clients that are not covered by the ETS should contact their HR Consultant if they wish to implement a policy.  

The original ETS established 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 original ETS, weekly testing was to be required for any employee who is unvaccinated for any reason, including for medical or religious reasons. Present your decision to the employee in writing and keep it as a record. 

This process is complicated, please do not hesitate to speak about it with your 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 would ultimately be 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 original ETS, weekly testing was to be required for any employee who is unvaccinated for any reason, including for medical or religious reasons. 

In the original 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 original ETS, weekly testing was to be 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 original ETS, weekly testing was to be 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 minimus 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 original 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.  

The original ETS was a Federal regulation that would have superseded or pre-empted all state and local laws regarding vaccination, testing, and face coverings unless the state or local law was more restrictive than the OSHA requirements.