On Nov. 5, 2021, the Occupational Safety and Health Administration (OSHA) issued the COVID-19 Vaccination and Testing emergency temporary standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. OSHA will require all employers—including construction companies—with more than 100 employees to mandate vaccinations for their workers or weekly COVID-19 tests to attend work.
Which workplaces are covered by the ETS?
The ETS applies all employers that have a total of at least 100 employees at any time the ETS is in effect and covers all workplaces including construction, manufacturing, retail, delivery services, warehouses, and healthcare.
Part-time employees do count toward the total number of employees, as well as employees who work from home (telework). However, independent contractors do not count toward the total number of employees.
Which workplaces are exempt?
There are exemptions in the rule that may narrowly apply to residential construction:
- Workers who do not report to a workplace where other individuals are present or who telework from home
- Workers who perform their work exclusively outdoors
When must employers comply?
The rule became effective Nov. 5, 2021. OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. The new compliance deadline dates for specific provisions in the rule are:
- Jan. 10, 2022:
- Written Employer Policy on Vaccinations, and Information Provided to Employees
- Determining Employee Vaccination Status
- Employer Support for Employee Vaccination
- Employee Notification to Employer of a Positive COVID-19 Test and Removal
- Face Coverings for Unvaccinated Employees
- Reporting COVID-19 Fatalities and Hospitalizations to OSHA
- Maintaining Medical Records
- Feb. 9, 2022: COVID-19 Testing for Employees who are Not Fully Vaccinated
What does the standard require?
The main requirements of the ETS include:
- Vaccination or testing. Employers with more than 100 employees to either mandate employees be fully vaccinated against COVID-19 or require employees that are not fully vaccinated to be tested for COVID-19 at least weekly and wear a face covering in the workplace. Employers must also determine the vaccination status of each employee and:
- Obtain acceptable proof of vaccination,
- Maintain records of each employee’s vaccination status, and
- Maintain a roster of each employee’s vaccination status.
Vaccination records must be maintained as confidential medical records as long as the ETS is in effect and must not be disclosed.
- Written employer vaccination policy. Employers must establish, implement, and enforce a written policy for COVID-19 vaccinations, testing, and face coverings.
- Paid time off for vaccination and PTO/sick leave for recovery. Employers must provide paid time off to employees to get vaccinated and paid time off or paid sick leave to recover from the vaccine side effects.
- COVID-19 testing for employees who are not fully vaccinated. Employers must ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer). Employers are not required to pay for any costs associated with testing, unless required by other laws or regulations.
- Notification of positive COVID-19 test and removal from work. Employees must notify employers when they receive a positive COVID-19 test or are diagnosed with COVID-19 and employers are required to immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider and keep employees out of the workplace until they meet criteria for returning to work.
- Face coverings for unvaccinated workers. Employees not vaccinated must wear a face covering (made of at least two layers of breathable fabric, secured to the head, and fit snugly over nose, mouth, and chin) when indoors or occupying a vehicle with another person for work purposes. Employees, regardless of vaccination status, may voluntarily wearing a face covering unless it creates a serious workplace hazard.
- Provide information to employees. Employers must provide specific information to employees on vaccines, including the CDC’s Key Things to Know About COVID-19 Vaccines and the requirements of the OSHA ETS.
- Reporting COVID-19 deaths and hospitalizations. Employers must report to OSHA each work-related COVID-19 fatality within eight hours of learning about the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours of learning about the hospitalization.
On multi-employer jobsites, are subcontractors included in OSHA’s 100-employee threshold?
No, on a typical multi-employer worksite such as a construction site, each company represented—the host employer, the general contractor, and each subcontractor—would only need to count its own employees, and the host employer and general contractor would not need to count the total number of workers at each site.
The ETS discusses this issue and specifically references construction sites: In such cases, each company represented – the host employer, the general contractor, and each subcontractor – would only need to count its own employees rather than the total number of workers at each site.
What if an employee requests an exemption from the vaccination requirement because of a disability or religious belief?
Under federal law, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, workers may be entitled to a reasonable accommodation from their employer, absent undue hardship. If the worker requesting a reasonable accommodation cannot be vaccinated and/or wear a face covering because of a disability, as defined by the ADA, the worker may be entitled to a reasonable accommodation. In addition, if the vaccination, and/or testing for COVID–19, and/or wearing a face covering conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation. For more information about evaluating requests for reasonable accommodation for disability or sincerely held religious belief, employers should consult the Equal Employment Opportunity Commission’s regulations, guidance, and technical assistance.
How is OSHA’s affect state laws that limit employers’ authority to require employees to be vaccinated?
OSHA’s ETS preempts states, and political subdivisions of states, from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a federally approved State Plan. OSHA intends for the ETS to preempt and invalidate any state or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing. State and local requirements that prohibit employers from implementing employee vaccination mandates, or from requiring face coverings in workplaces, serve as a barrier to OSHA’s implementation of this ETS.
- OSHA Summary of COVID-19 Vaccination and Testing ETS
- OSHA Frequently Asked Questions Vaccine and Testing ETS
- OSHA Mandatory Vaccination Sample
- OSHA Vaccination or Testing and Face Covering Sample
- NAHB COVID – 19 Video Toolbox Talk (English)
- NAHB COVID – 19 Video Toolbox Talk (Spanish)
- NAHB Vaccine Awareness Week