"On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation."
OSHA.gov COVID-19 Vaccination and Testing ETS Webpage
On November 6, the 5th U.S. Circuit Court of Appeals temporarily halted OSHA’s Interim Final Rule on coronavirus vaccination and testing. OSHA is required to provide an expedited reply to the motion for a permanent injunction on November 8, followed by petitioners' reply the next day.
Original post (11/5/21)
OSHA’s emergency temporary standard (ETS) concerning COVID-19 vaccination and testing for large employers was published to the Federal Register
on November 5, 2021 and takes effect immediately.
The Interim Final Rule (IFR)
will require employers with 100 or more employees to:
- Develop, implement, and enforce a mandatory COVID-19 vaccination policy; or
- Adopt a policy requiring employees to get vaccinated or undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.
Covered employers must provide a reasonable amount of time off for employees to get vaccinated and provide paid time off for employees to recover from side effects of each mandated vaccine dose.
Employers have until December 6, 2021
to achieve compliance with all but one section of the rule. Compliance with paragraph (g) of the ETS, which lays out testing and recordkeeping requirements for unvaccinated employees, will take effect on January 4, 2022.
Read OSHA's Interim Final Rule in the 11/5 Federal Register.
OSHA will accept public comments on the Interim Final Rule until December 6, 2021.
Exceptions and Exclusions
The requirements do not apply to the following employers:
The requirements do not apply to employees:
- Workplaces covered under specific existing guidance for Federal Contractors and Subcontractors; and
- Healthcare services or healthcare support services settings subject to existing requirements for controlling COVID-19 in those workplaces in 29 CFR 1910.502.
- Who do not report to a workplace where other individuals are present;
- While working from home; or
- Who work exclusively outdoors.
See the text of the Interim Final Rule
for more details about potential exemptions.
What Counts as Proof of Vaccination?
Employers must require vaccinated employees to provide proof of vaccination status. Acceptable forms of proof of vaccination include:
- An immunization record from a health care provider or a 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 info system;
- A copy of any other official documentation that contains the type of vaccine, date of administration, and name of the professional or clinic that administered it.
If an employee cannot produce one of the documents above, the employer may accept a signed and dated certification statement from the employee, as long as the statement contains specific information outlined in the rule.
Reporting & Recordkeeping
Employers must maintain a record and a roster of each employee’s vaccination status. Acceptable proof of full or partial vaccination for each employee must be preserved.
These records must be retained in accordance with the recordkeeping requirements in 29 CFR 1910.1020. They are not
subject to the retention requirements of 1910.1020, but must be kept on file as long as the rule remains in effect.
OSHA COVID-19 ETS Webinar
OSHA presented a webinar titled "COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS)" on November 4 to guide stakeholders through the new requirements. You can view the full webinar below.
White House Statement on New Requirements
In a statement to mark the IFR's release, the White House said:
"Safety rules in the workplace are nothing new. We require hard hats in construction and safety goggles in labs. And with today’s actions, we now have requirements to protect people from something that has taken the lives of 750,000 Americans."
For more details, read the Final Rule in the November 5 Federal Register.
Statement by the President on Vaccination Requirements (November 4, 2021)
Earlier COVID-19 Rules and Guidance from OSHA
OSHA released its first guidance on coronavirus safety in early 2020 and has issued additional clarifications on enforcement and stronger guidance since then.
In January 2021, President Joe Biden directed the Agency to draft a COVID-19 safety rule for workplaces, which then published to the Federal Register
on June 21, 2021. The rule, specifically for workers in the healthcare industry
, went into effect a month later.
In addition, OSHA launched a National Emphasis Program (NEP)
in March 2021 to protect high-risk workers from hazards related to COVID-19 exposure. The NEP expands upon existing inspection provisions, with an emphasis on non-healthcare facilities, such as meat/poultry processing plants, chemical manufacturers, warehouses, and agricultural sites.