11.08.2021 | COVID-19

New OSHA COVID-19 Standard Released / Stayed – For Now

COVID-19 Client Alerts:

New OSHA COVID-19 Standard Released / Stayed – For Now


The Occupational Safety and Health Administration issued an Emergency Temporary Standard on COVID-19 vaccinations, testing, and face coverings for employers of 100 or more employees.  (Separate standards govern employees of federal contractors and health care providers.)  The standard requires employers to be in compliance with the regulation by December 6, 2021, except that the deadline for employees to be fully vaccinated is January 4, 2022.

However, on Saturday, a federal court issued a temporary stay of the standard, ordering the government to file briefs today concerning the issues raised.

If the stay is lifted, the OSHA standard will remain and be effective in California.  However, while Cal/OSHA cannot adopt a less stringent standard, Cal/OSHA is permitted to adopt a stricter standard within 30 days.

Highlights of the new OSHA regulation are summarized below, but stay tuned for more developments.

Covered Employees

While all employees are counted to determine if an employer reaches the 100 employee threshold, the regulations do not apply to employees who, i) work exclusively from home; ii) work at a worksite where no others are present; or, iii) work exclusively outdoors.

Required Vaccination Policy

Covered employers must establish, implement, and enforce a written vaccination policy.  There are two options for the policy:

1. A mandatory vaccine policy:

Under this policy, the employer requires all covered employees to be fully-vaccinated by January 4, 2022, with the exceptions of employees:

a. For whom vaccination is medically contraindicated;
b. For whom medical necessity requires a delay in vaccination;
c. Who have a disability and are legally entitled to a reasonable accommodation; or
d. Who have a sincerely held religious belief that conflicts with the vaccination requirement and are legally entitled to a reasonable accommodation.

2. A policy allowing employees to choose:

a. To be fully vaccinated; or
b. To provide proof of regular testing and wear a face covering.

OSHA provides sample policies for each option at https://www.osha.gov/coronavirus/ets2.

Required Tracking of Vaccination Status

Employers must obtain documentation of each covered employee’s vaccination status and must maintain a roster of each employee’s status.  Employees who do not provide one of the permitted types of documentation must be treated as unvaccinated.

Employer Responsibilities for Vaccinations

Employers must provide a reasonable amount of time to each employee to obtain their vaccinations, up to four hours of which must be paid time, including travel time.

Employers must also provide a reasonable amount of paid time off for employees to recover from any side effects of vaccination.

Employer Responsibilities for Testing

Employers must obtain documentation from employees who are not fully vaccinated.  Most employees must be tested once per week.  Employees who do not report to a worksite where others are present for seven or more days must be tested within 7 days prior to returning to the worksite.

Employees must pay the costs of testing.

If an employee fails to provide the required testing documentation, the employer must keep that employee out of the workplace.

Employer Responsibilities for Face Coverings

Employers must ensure that employees who are not fully vaccinated wear a face covering when indoors and when occupying a vehicle with another person for work purposes.  Exceptions are provided for employees who are alone in a room with the door closed; who are actively eating or drinking; who are wearing a respirator or facemask; or, when the use of the face covering would be more hazardous than not.

For more information, employers can review OSHA’s Frequently Asked Questions about the Emergency Temporary Standard.


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