OSHA Withdraws COVID-19 Vax-or-Test ETS

Posted on 1/27/2022 by Roger Marks

(01/28/22) Update: OSHA Withdraws Vax-or-Test ETS 

OSHA has withdrawn the COVID-19 emergency temporary standard (ETS) that would have required employers with 100 or more employees to confirm workers’ vaccination status and regularly test employees who have not received a vaccine.  

The withdrawal comes after the Supreme Court granted a stay of the ETS last month, preventing OSHA from enforcing the rule until legal challenges are settled. 

OSHA expressed disappointment in the Supreme Court’s decision and vowed to use its existing enforcement tools—including a National Emphasis Program (NEP) and the OSH Act General Duty Clause—to protect workers from exposure to COVID-19 at work. See the previous update (below) for more details. 

(01/13/22) Update: Supreme Court Grants Stay of Vax-or-Test ETS 

After hearing oral arguments for and against a stay of OSHA’s emergency temporary standard (ETS) concerning vaccination and testing programs for large employers, the Supreme Court granted a stay until the courts reach a final decision about the merits of the ETS.

In a statement released on January 13, the Secretary of Labor stated that OSHA will exercise its existing authority to ensure businesses protect workers from the risks of exposure to COVID-19.
OSHA will continue to ensure employers comply with the OSH Act "General Duty Clause," which requires employers to provide a workplace free of recognized hazards that can cause death or serious injury. OSHA's COVID-19 National Emphasis Program (NEP), meanwhile, lays out inspection procedures for healthcare and non-healthcare workplaces and was updated in summer 2021.  

The Supreme Court decision does not prevent employers from implementing a COVID-19 vaccination and/or testing policy for employees. Workplaces that already implemented a policy to comply with OSHA's emergency rule may choose to keep the policy in place (or not).  


(12/27/21) Update: US Court of Appeals Dissolves Stay on ETS

On December 17, the US Court of Appeals for the Sixth Circuit dissolved the stay on OSHA's vaccination and testing ETS, potentially clearing the way for OSHA to enforce the emergency temporary standard for employers with 100 or more employees. 

OSHA has stated that the agency will not cite employers for noncompliance until at least January 10, and will not cite employers for testing-related noncompliance until February 9. 

On January 7, the Supreme Court will hear arguments concerning the "Vax-or-Test" ETS as well as an earlier rulemaking concerning employee vaccination in healthcare settings that receive government funding.

(12/6/21) Update: OSHA Extends Comment Period

OSHA has extended the comment period for the COVID-19 vaccination and testing emergency temporary standard (ETS) to January 19, 2022. OSHA extended the comment period by 45 days to allow stakeholders additional time to review the ETS and collect information and data necessary for comment.

Comments are only accepted electronically via the Federal e-Rulemaking Portal.

(11/12/2021) Update: 5th Circuit Grants Stay of Vax-or-Test ETS, Prevents Enforcement 

"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." COVID-19 Vaccination and Testing ETS Webpage

(11/8/21) Update: 5th Circuit Temporarily Halts OSHA Vax-or-Test ETS

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.

(11/5/21) Final Rule Alert: OSHA's COVID-19 Vaccination and Testing 

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:

  1. Develop, implement, and enforce a mandatory COVID-19 vaccination policy; or

  2. 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 non-vaccinated 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:

  • 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.

The requirements do not apply to employees:

  • 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.

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."

Statement by the President on Vaccination Requirements (November 4, 2021)

For more details, read the Final Rule in the November 5 Federal Register.

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.

Tags: COVID-19, covid-19 news, osha, workplace health and safety

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