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Vax or Test has Arrived
November 04, 2021
OSHA’s long-anticipated (as we have previously discussed) COVID-19 Emergency Temporary Standard ("ETS") is out and, as promised, it will require companies with at least 100 employees – across all facilities – to either institute a vaccine mandate or compel unvaccinated employees to submit to weekly testing and workplace masking for at least the next six months. 

The Biden administration announced this “Vax or Test” ETS (along with similar but more stringent rules for federal contractors and Medicaid/Medicare recipients) would be forthcoming back in September. Under the new ETS, covered employers will need to implement a written policy by December 5, 2021 requiring either:
  • That all employees be fully vaccinated against COVID-19 (subject to exceptions for medical, disability or religious accommodation needs); or 
  • Allow unvaccinated employees to opt for weekly testing and mandatory masking. Employees who opt not to be vaccinated under the approach can be required to pay for their own tests and masks (subject to state and local law requirements, possible accommodation issues, and any relevant collective bargaining agreement).

Critically, the Centers for Medicare and Medicaid Services also issued a new rule for entities receiving Medicare and Medicaid funds. These more stringent rules would apply to Medicare and Medicaid recipients, as do the rules issued by OSHA for healthcare facilities this summer.

Under the OSHA ETS, over-the-counter tests are sufficient, but they must be proctored by an employee or medical provider. The ETS says that self-administered and self-read tests are not acceptable unless observed by the employer or an authorized telehealth proctor. 

One issue that remains unclear is whether testing time is time spent working under the Fair Labor Standards Act, though most over-the-counter tests can be taken in a very minimal amount of time.

The ETS also requires employers to provide four hours of paid time off for receiving the vaccination if the employee chooses to receive a primary vaccination during work hours, and reasonable time and paid leave to recover from side effects experienced following any primary vaccination dose. 

Employers must also require all (vaccinated and unvaccinated) employees to notify them of a positive COVID-19 test and remove the employee from the workplace until they are able to return to work. An employee can return to work upon a negative test, a doctor’s certification or compliance with CDC isolation standards. Employers are NOT required to pay for this time off under the OSHA ETS, but healthcare entities are still required to under the prior issued rules for that industry.

Regardless of the reason for remaining unvaccinated, it appears that all unvaccinated employees will be required to wear masks while indoors and when in close contact with coworkers. Presently, OSHA is strongly recommending all employees, regardless of vaccination status, wear face coverings if the county where they work is an area of high or substantial transmission according to the Centers for Disease Control’s tracking webpage.

Again, employers will have to implement a new vaccine rule by December 5, 2021, but can delay the testing requirement until January 4 of 2022. Notably, the administration also postponed the date by which federal contractors must ensure their employees are vaccinated to that date as well. After that date, employers could be hit with an OSHA citation of up to $14,000 per violation.  

If you have any questions about vaccination mandates and the surrounding issues, please feel free to contact us at any time.
Labor & Employment Law Eric E. Kinder