UPDATE: On Jan. 13, 2022, in a 6-3 vote, the U.S. Supreme Court reinstated the stay on OSHA's COVID-19 vaccination and testing emergency temporary standard. The ruling sends the case back to the U.S. Court of Appeals for the Sixth Circuit. The opinion stated that the OSH Act empowers the secretary of labor to set workplace safety standards, not broad health measures and called the ETS "a significant encroachment into the lives—and health—of vast number of employees." In a 5-4 order, the justices also allowed a Centers for Medicare and Medicaid Services vaccination mandate for workers at federally funded healthcare facilities.
While many employers have implemented control measures for COVID-19 exposures, employers should assess the risks in their workplace and develop policies aligned to OSHA’s COVID-19 emergency temporary standard (ETS) for vaccination and testing so they can quickly comply if it becomes law.
Deborah Roy, M.P.H., RN, COHN-S, CSP, CIT, FASSP, FAAOHN, president of SafeTech Consultants Inc., was our 2020-21 president and has extensive pandemic planning experience with organizations and at the state and federal levels. We have worked closely with her in developing our response to the ongoing pandemic.
We spoke with Roy, who offered guidance you can use to help your organization proactively prepare for complying with the ETS.
ASSP: What steps should companies take to prepare for proof of vaccination and/or negative testing and face covering requirements?
Roy: Companies should first consider their current policies related to COVID-19 vaccination and testing, and compare them to the sample policy documents provided by OSHA (sample mandatory vaccination policy; sample vaccination or testing and face covering policy). Companies can either mandate vaccination with exemptions for medical or religious reasons or encourage vaccination and require weekly COVID testing of unvaccinated employees along with wearing face coverings when indoors or when occupying a vehicle with another person for work purposes. An employer can also consider exemptions for disability or religious reasons in its testing and face covering policy. Once they select an approach, employers should modify company-specific policies to meet the OSHA ETS.
ASSP: What factors should employers review when considering a COVID-19 vaccination policy?
Roy: Companies should consider their existing workforce vaccination rate, employee risks to COVID-19 exposure in the workplace and organizational culture. If the employer has already collected data on vaccination from employees and has achieved a high degree of vaccination in the workforce, it may be more appropriate to continue encouraging vaccination as noted by the standard and focus on updating the policy for vaccination documentation and testing and face coverings for unvaccinated individuals. If a company is currently mandating vaccination and is not allowing any exemptions or has different exemptions than the standard, then it may need to modify its exemption policy.
ASSP: Can employers survey employee sentiment around vaccination to help with communications around policies and expectations?
Roy: Nothing in the ETS precludes an employer from surveying employees to provide input into policies or communications. This does not mean employers can avoid compliance with the ETS if some employees do not agree with the regulation or the company policy.
ASSP: Can employers survey employees to determine vaccination status?
Roy: Although no provision in the ETS would prevent an employer from surveying employees, the ETS contains specific requirements for the documentation an employer must collect from employees to prove vaccination.
The requirements to prove vaccination are:
- The record of immunization from a healthcare provider or pharmacy
- A copy of the 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
- Or a copy of any other official documentation that lists the type of vaccine administered, date(s) of administration, and the name of the healthcare professional(s) or clinic site(s) administering the vaccine(s)
If an employee is unable to produce acceptable proof of vaccination, the ETS allows for a signed and dated statement by the employee attesting to their vaccination status (fully vaccinated or partially vaccinated). Under the ETS, any employee who does not provide one of the acceptable forms of proof of vaccination status to their employer must be treated as not fully vaccinated.
The proposed ETS also requires the employer to maintain a roster of employees and their status. The roster and the actual vaccination records are considered confidential medical records. The roster is intended to provide the employer with a means of determining the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
Since OSHA standards, including this ETS, are minimum standards, employers who can show vaccination rates well above 90% are unlikely to be the focus of OSHA’s limited inspection resources. The employer’s goal and the current vaccination rate will be important metrics for an OSH professional to maintain to evaluate the efficacy of their organization’s vaccination policy and interact with OSHA should an inspection or inquiry occur.
ASSP: What are the recordkeeping requirements for testing and vaccination documents?
Roy: An employer must maintain a record of each employee’s vaccination status and must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated. The employer also must maintain a roster of each employee’s vaccination status. These records and roster are considered employee medical records and must be maintained as such in accordance with OSHA’s standard for access to employee exposure and medical records (29 CFR 1910.1020). They must not be disclosed except as required or authorized by this section or other federal law. These records and roster are not subject to the retention requirements of 29 CFR 1910.1020(d)(1)(i), but must be maintained and preserved while this section is in effect.
For employers that have already collected vaccination records prior to the ETS: Under 29 CFR 1910.501(e)(5), when an employer has ascertained employee vaccination status prior to the effective date of this section through another form of attestation or proof, and retained records of that information, the employer is exempt from the requirements in paragraphs (e)(1) through (3) of this section only for each employee whose fully vaccinated status has been documented prior to the effective date of the section. For purposes of paragraph (e)(4) of this section, the employer’s records of ascertainment of vaccination status for each such person constitute acceptable proof of vaccination.
In regard to testing, according to 29 CFR 1910.501(g)(4), the employer must maintain a record of each test result provided by each employee under paragraph (g)(1) of this section or obtained during tests conducted by the employer. These records are considered employee medical records and must be maintained as such in accordance with 29 CFR 1910.1020 and must not be disclosed except as required or authorized by this section or other federal law. These records are not subject to the retention requirements of 29 CFR 1910.1020(d)(1)(i), but must be maintained and preserved while this section is in effect.
ASSP: What exemptions is OSHA allowing under the ETS?
Roy: First, the standard applies to most employers normally covered by OSHA standards that have a total of at least 100 employees in the firm or corporate-wide at any time the ETS is in effect. Once an employer is subject to the standard, the ETS vaccination or testing policy does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home or employees who work exclusively outdoors.
According to the standard’s preamble published in the Federal Register, OSHA understands that employees at smaller employers also need to be protected. The agency’s intent was to address larger employers first because they are considered to have the means to comply. That’s why I recommend smaller employers start to consider vaccination, testing and face covering policies if the standard goes forward.
ASSP: What are some steps employers can take to consider whether to offer a testing option? Are results from home testing results accepted?
Roy: Whether an employer develops a mandatory vaccination policy or encourages vaccination but allows employees to be tested and wear face coverings, the employer will need to consider providing testing. In the case of a mandatory policy, those who are granted exemptions for medical or religious reasons still need weekly testing.
The employer may wish to provide testing on-site and pay for the cost depending on the location, availability and cost of testing in the community. Controlling the testing process also allows the employer direct access to test results, which they must also share with employees. Either a Nucleic Acid Amplification Test (NAAT) — the PCR type — or the rapid antigen tests are acceptable.
Home tests are only allowed if they are proctored. The easiest way to do that is to require home tests that have a telemedicine component. If the company has an on-site occupational health clinic or a third-party provider, a home test can be used and proctored by the provider. The key is that the employee can’t self-administer the test and determine the result.
ASSP: Will employers be expected to pay for the weekly COVID testing for those who are not vaccinated?
Roy: In the FAQs for the ETS, OSHA clearly states that employers are not required to pay for the cost of testing. However, employer payment for testing may be required by state laws or collective bargaining agreements. Some employers have chosen to provide and pay for testing on-site by an occupational health clinic or a third-party provider to simplify the logistics and facilitate accurate data collection.
ASSP: What role do you see OSH professionals playing in the implementation and deployment of this ETS across covered organizations?
Roy: Since OSH professionals are often responsible for helping their leaders consider decisions around safety and health standards, I see us playing a critical role in recommending which approach to use; writing or collaborating with colleagues such as human resources or occupational health to write policy; identifying success metrics; and supporting leadership in implementing the ETS. In facilities without an on-site occupational health clinic, an OSH professional may be responsible for identifying testing sites or providing interpretation and management of employees who need to be out of the workplace after testing positive for COVID-19.
ASSP: What skill sets will serve them best in helping their companies understand and implement the requirements?
Roy: The ability to review and interpret standards, think critically about the science behind the risk, recommend practical control strategies to reduce risk and collaborate with other disciplines within the organization will serve OSH professionals well in addressing these requirements.
ASSP: How can safety professionals find a balance between traditional OSH implementation and managing COVID-19 issues?
Roy: OSH professionals should keep in mind the need for medical confidentiality when managing employees being away from work due to a positive COVID-19 test or returning to work after COVID-19 illness. This also applies to vaccination documentation and rosters. Only need-to-know information should be shared with leadership. If an on-site occupational health clinic is available, it’s best to collaborate with these professionals and support the company policies.
Despite the ongoing pandemic, OSH professionals need to continue to manage traditional OSH programing and help their organizations reduce all risks to employees. That means being organized and prioritizing daily activities. Most of us are working more than ever, but that is not sustainable over several years. If more resources are needed, you will need to advocate for yourself and outsource or delegate tasks where feasible.
ASSP: We have heard some concerns about conflicts with state plans. If an OSH professional manages operations for facilities in state-plan-states, should they stick with the federal ETS or could there be additional issues with compliance in different states?
Roy: Since the state-plan states are required to adopt the federal ETS within 30 days as a minimum standard, you should ensure compliance with the federal ETS. If the ETS is extended, then it would be wise to evaluate if the state plan has additional requirements beyond those contained in the federal ETS. Given the nature of an ETS, that is unlikely.
ASSP: If an employee tests positive for COVID-19, what next steps should an employer take?
Roy: An employer will need to remove the employee from the workplace and keep the employee removed until the individual:
- Receives a negative result on a COVID-19 NAAT test following a positive result on a COVID-19 antigen test (if the employee chooses to seek a NAAT test for confirmatory testing)
- Meets the return-to-work criteria in the CDC’s isolation guidance
- Or receives a recommendation to return to work from a licensed healthcare provider
The employer is not required to provide paid time to any employee for removal from the workplace as a result of a positive COVID-19 test or diagnosis of COVID-19. However, paid time may be required by local laws or collective bargaining agreements.