Updated 1/25/2022: In response to the U.S. Supreme Court’s January 13, 2022 opinion on the OSHA ETS, OSHA is withdrawing the ETS effective as of January 26, 2022. This means that the ETS will not be an enforceable ETS as of January 26, 2022 and private employers with 100 or more employees are not required to ensure their workers are vaccinated or undergo weekly COVID-19 testing under federal law (unless they receive federal funding from Medicare or Medicaid). It is important to note that certain employers may still be subject to similar state laws that require vaccination or testing.

Updated 1/18/22: On January 13, 2022, the United States Supreme Court re-implemented the stay on the OSHA ETS. This means that employers with 100 or more employees are not currently required to comply with the OSHA ETS for COVID-19 vaccines and testing. For more on the Supreme Court decision, see our blog.

UPDATED 1/12/22: On January 7, 2022, the United States Supreme Court (USSC) heard arguments on whether the Biden administration has the legal authority to impose the COVID-19 vaccine and testing mandate. The USSC will decide whether to put on hold the U.S. Court of Appeals order that allows the OSHA ETS to be implemented. It is unclear when the USSC will issue a decision, though certain OSHA ETS requirements already went into effect on January 10, 2022.

UPDATED 12/20/21: On December 17, 2021, the U.S. Court of Appeals for the 6th Circuit dissolved the stay of the OSHA Emergency Temporary Standards (ETS) for COVID-19 Vaccine and Testing. As a result, OSHA announced that it would move forward with the ETS implementation. OSHA indicated that it would not issue citations for noncompliance with the ETS if covered employers complied with the ETS (except the COVID-19 testing requirement) by January 10, 2022 and with the weekly COVID-19 testing requirement for unvaccinated employees by February 9, 2022.

UPDATED 11/19/21 – 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 (ETS), published on November 5, 2021. 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 announced that it has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. This is a dynamic issue and employers are encouraged to consult with counsel to determine their continued approach to the ETS.

Original Article

On November 5, 2021, the highly-anticipated Occupational Safety and Health Administration (OSHA) emergency temporary standards (ETS) on the Biden Administration’s vaccine mandate were published, along with a summary, fact sheet, and FAQs. The vaccine mandate, previously announced on September 9, 2021 as a part of the administration’s COVID-19 Action Plan, requires private employers with 100 or more employees to ensure their workers are vaccinated or tested for COVID-19 on a weekly basis.

The ETS establishes minimum requirements that private sector employers must implement and fills in key details on the vaccine mandate, including how employee count is determined, which employees the mandate applies to, the vaccination/testing requirement, required paid time off for vaccination or sick leave relating to a vaccine, and documentation requirements. OSHA intends the ETS to comprehensively address the occupational safety of vaccination, wearing face coverings, and testing for COVID-19. As such, the ETS is intended to preempt inconsistent state and local laws relating to these issues, including requirements that ban or limit an employers’ authority to require vaccination, face coverings, or testing, even for employers with less than 100 employees.

On November 6, 2021, the U.S. Court of Appeals for the 5th Circuit granted a stay of the ETS, which temporarily halts its implementation while the validity of the ETS is litigated. Though the 5th Circuit stay was issued, which involves one of several lawsuits that challenges the ETS, employers should nonetheless prepare to comply with the ETS’s fast approaching deadlines.

Employers must begin complying with all provisions of the ETS (except the COVID-19 testing requirement) by December 5, 2021. Employers must comply with the testing requirement for employees who are not fully vaccinated by January 4, 2022. OSHA expects the ETS to be in effect for 6 months from the date of publication, or until May 5, 2022; however, OSHA will update the ETS if they no longer find a grave danger from COVID-19 exists.

Compliance Snapshot

  • Covered Employers: Employers with 100 or more employees at any time the ETS is in effect is subject to the vaccine mandate for the duration of the ETS. Part-time employees, temporary and seasonal employees, employees working from home, and employees working exclusively outdoors must be included in the threshold count. Independent contractors are not included.
  • Covered Employees: The ETS does not apply to employees of covered employers who do not report to a workplace where other individuals are present, employees who exclusively work from home, or employees who exclusively work outdoors.
  • Vaccination/Testing Policy: Covered employers must develop, implement, and enforce a written policy that: (1) requires employees to be fully vaccinated (with certain exceptions) or (2) requires employees to undergo weekly COVID-19 testing and wear a face covering indoors. Covered employers are not required to pay for any costs associated with testing.
  • Documentation and Retention of Vaccination Status/Testing: Covered employers must determine the vaccination status of all employees and maintain “acceptable proof” of vaccination status, a roster of each employee’s vaccination status, and COVID-19 test results while the ETS is in effect.
  • Paid Time Off: Covered employers must provide “reasonable time” for employees to receive the vaccine, including up to 4 hours of paid time for each vaccination dose, and paid sick leave to recover from the any vaccine side effects.
  • Notification of and Removal After a Positive COVID-19 Test/Diagnosis: Covered employers must require employees to promptly notify them of a positive COVID-19 test or diagnosis and, upon such notice, immediately remove them from the workplace until certain requirements are met.
  • Notice to Employees: Covered employers must notify employees of their vaccination policy, information about the vaccine, and applicable anti-discrimination and anti-retaliation provisions in a language and literacy level employees understand. OSHA provides template policies and fact sheets to assist with this requirement.
  • OSHA Reporting: Covered employers must notify OSHA of work-related COVID-19 fatalities and in-patient hospitalizations within a specified time period.
  • Availability of Records: Covered employers must make available certain records and aggregate numbers of vaccinated employees upon request of an employee or OSHA.

Covered Employers

The ETS applies to private employers who have 100 or more employees at any time the ETS is in effect. The ETS does not apply to federal contractors or in settings where employees provide healthcare services, since those workplaces are subject to a separate set of requirements.

Workers that count toward the threshold: When determining employee headcount for purposes of the ETS, employers must include all employees across all U.S. locations, regardless of employees’ vaccination status or where they perform their work, including:

  • Part-time employees;
  • Temporary and seasonal workers;
  • Employees working from home;
  • Employees who do not report to the worksite (e.g., employees working primarily from company vehicles);
  • Employees who are minors; and
  • Employees working exclusively outdoors.

Independent contractors and employees of a staffing agency placed at an employer’s workplace are not included in the employer’s employee count.

The ETS also provides guidance on how employee count should be determined in different corporate structures:

  • For single corporate entity with multiple locations, all employees at all locations are counted.
  • In the franchisor-franchisee relationship in which franchisees are independently owned and operated, the franchisor would only count “corporate” employees and the “franchisee” would only count the employees of that individual franchise.
  • Two or more related entities may be regarded as a single employer for the ETS if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.
  • In scenarios where employees of a staffing agency are placed at a host employer location, only the staffing agency would count the jointly employed employees.
  • On multi-employer worksites, each company would count its own employees. For example, on a construction site, the general contractor and each subcontractor would only count its own employees.

When employee count is determined: Employers should initially count employees as of the effective date of the ETS (November 5, 2021).

  • If an employer has 100 or more employees on the effective date, the ETS applies for the duration of the ETS.
  • If an employer has fewer than 100 employees, the ETS will not apply as of the effective date. However, if the employer subsequently hires more workers and hits the 100-employee threshold, the employer will be subject to the ETS. Therefore, employers who expect to reach 100 employees during the next 6 months may want to prepare a policy to put in place once the threshold is met.

Once an employer meets the 100-employee threshold (either initially as of the effective date or later when the ETS is in effect), the ETS will continue to apply to the employer for the duration of the ETS, regardless of whether the employer’s workforce later drops below the 100-employee count.

Covered Employees

The ETS does not apply to the following types of covered employees:

  • Those who do not report to a workplace where other individuals (e.g., coworkers, customers) are present;
  • Those who work from home (an employee who switches back and forth between teleworking and working in a setting with others present, such as an office, is covered by the ETS); or
  • Those who work exclusively outdoors (i.e., the employee works outdoors all days other than the de minimis use of indoor spaces and the employee does not routinely occupy vehicles with other employees as a part of their job duties).

Though the above categories of employees are not subject to the ETS, they are included toward the headcount for purposes of determining whether the employer is subject to the ETS. The ETS provides the following example to illustrate this:

A landscaping contractor with at least 100 employees is subject to the ETS, even if most of its employees work exclusively outdoors. However, the ETS would only apply to employees working in indoor settings around other individuals (other than telework in their own homes), and not to those employees working exclusively outdoors.

Written Policy on Vaccination

The ETS requires covered employers to establish, implement, and enforce a written policy on COVID-19 vaccination for their workforce by December 5, 2021.

Covered employers can adopt one of two policies:

  1. Mandatory Vaccination Policy: All employees must be fully vaccinated unless they fall into 1 of 3 exceptions:
    • Employees for whom a vaccine is medically contraindicated;
    • Employees for whom medical necessity requires a delay in vaccination; or
    • Employees who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
  2. Policy that Permits Regular COVID-19 Testing/Face Coverings: Employees can choose either to be (1) fully vaccinated; or (2) provide proof of regular testing for COVID-19 and wear a face covering indoors.

For purposes of the ETS, an individual is considered “fully vaccinated” 2 weeks after completing “primary” vaccination (i.e., the second dose where the vaccine is a two-dose series, with the minimum recommended interval between doses) of an FDA or WHO authorized COVID-19 vaccine. The ETS does not consider individuals who have “natural immunity” based on a previous COVID-19 infection to be vaccinated.

Partial Vaccination Policy: Employers are permitted to develop and implement partial vaccination policies that apply to only a portion of their workforce. The ETS provides the following example:

A retail employer has a mixture of staff working at corporate headquarters, performing intermittent telework from home, and working in stores serving customers. The employer may choose to require vaccination of only a subset of its employees (e.g., those working in stores), and to treat vaccination as optional for others (e.g., for those working at corporate headquarters or who perform intermittent telework).

Content of Vaccination Policy: Vaccination policies should address all the requirements of the ETS, including:

  1. Requirements for COVID-19 vaccination or an option for COVID-19 testing/face covering;
  2. Applicable exclusions from the written policy (e.g., medical contraindications, medical necessity requiring delay of vaccination, or reasonable accommodations for workers with disabilities or seriously held religious beliefs);
  3. Information on determining an employee’s vaccination status and how this information will be collected;
  4. Paid time and sick leave for vaccination purposes;
  5. Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace;
  6. Information to be provided to employees (e.g., how the employer is making that information available to employees); and
  7. Disciplinary action for employees who do not abide by the policy.

In addition, employers should include all relevant information regarding the policy’s effective date, who the policy applies to, deadlines (e.g., for submitting vaccination information, for getting vaccinated), and procedures for compliance and enforcement. The vaccination policy should also address how the policy applies to new employees.

Employers who have already implemented a vaccine policy must evaluate their policy to ensure it satisfies all requirements under the ETS.

Template Policies: OSHA provides two template policies (located here under “Implementation”), one for mandatory vaccination and one that permits regular testing and face coverings. The template policies also provide sample language on paid time off, employee notification of COVID-19, removal from the workplace and return to work criteria, testing, and face coverings.

Distribution of Policy: Covered employers must distribute the vaccination policy to employees, as discussed in the “Notice to Employees” section below. In addition, the policy should be made readily accessible to all employees through the employer’s normal methods of distributing information to employees. The policy does not need to be submitted to OSHA, though it must be provided to OSHA upon request (discussed in the “Availability of Records” section below).

Documentation of Vaccination Status

Covered employers must collect and retain documentation (either physically or electronically) of vaccination status for all covered employees by December 5, 2021. Employees who do not provide an “acceptable form” of proof of vaccination, as outlined below, must be treated as not fully vaccinated and must submit weekly tests and wear a face covering indoors.

Required Documentation: For the duration of the ETS, covered employers must:

  • Determine vaccination status of each employee;
  • Maintain records of each employee’s vaccination status (employers are not required to obtain information related to booster shots or additional doses);
  • Preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated; and
  • Maintain a roster of each employee’s vaccination status (i.e., a list that indicates whether employees are fully vaccinated, partially vaccinated, or not fully vaccinated because of a medical or religious accommodation).

Vaccination records and the roster are employee medical records and must be maintained in accordance with federal laws, including the Americans with Disabilities Act (ADA). The ADA requires medical records to be kept confidential and separate from personnel records.

Acceptable proof of vaccination status for purposes of the ETS include:

  • The record of immunization from a health care provider or pharmacy;
  • A copy of the U.S. CDC 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 immunization information system;
  • A copy of any other official documentation that contains the type of vaccine administered, the date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s) (e.g., some states and local governments use a QR code to facilitate proof of vaccination).

Copies, including digital copies (e.g., photo, scanned image, or PDF), of the above listed forms of proof are acceptable so long as they clearly and legibly display the necessary information.

In cases where an employee is unable to obtain the above acceptable proof of vaccination, the employee can provide a signed and dated statement that attests to:

  • Their vaccination status (i.e., fully or partially vaccinated);
  • That they have lost or otherwise unable to provide the proof required (before the employee is able to attest, the employee must have attempted to secure alternate forms of documentation via other means and been unsuccessful in doing so);
  • The following statement: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties;” and
  • Includes the following information, to the best of the employee’s recollection: the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

Individuals who knowingly make any false statement or certify a document required to be maintained under ETS (e.g., documents submitted for purposes of complying with a vaccination or testing policy) may be subject to a penalty of up to $10,000 and/or imprisonment up to 6 months.

An employee’s verbal confirmation of vaccination or mere showing of vaccination status (e.g., showing of a CDC COVID-19 vaccination card) is not sufficient to satisfy the record maintenance standards of the ETS.

If, prior to November 5, 2021, an employer had already ascertained vaccination status through another form of attestation or proof and retained records of the ascertainment, the employer’s records will constitute acceptable proof of vaccination for those fully vaccinated employees whose status was documented.

Required Paid Time Off

Covered employers (regardless of whether a mandatory vaccination policy or testing alternative is implemented) are required to provide paid time off to employees to receive the vaccine and to recover from any vaccine side effects by December 5, 2021.

  • Receive the vaccination: Employers must provide a “reasonable time” during work hours, including up to 4 hours of paid time to receive each vaccination dose.
    • Paid time must be provided at an employee’s regular rate of pay and employers cannot require employees to use accrued personal time or sick leave for this purpose.
    • “Reasonable time” may include time spent completing paperwork, time at the vaccination site, and time traveling to and from the vaccination site.
    • Any “reasonable time” that exceeds 4 hours is unpaid, but will constitute protected leave (i.e., an employer cannot terminate employees for taking more than 4 hours to receive their vaccine, if reasonable). An employee may use other leave they have available (e.g., sick or vacation time) to cover the additional time needed to receive a vaccination dose that would otherwise be unpaid.
  • Recover from Vaccine Side Effects: Employers must provide “reasonable time” and paid sick leave to recover from side effects experienced following each vaccination dose.
    • The ETS does not specify the amount of paid sick leave employers must provide for this purpose. Employers may set a cap on the amount of paid sick leave, but the cap must be “reasonable.” The ETS FAQs state that 2 days of paid sick leave to recover from each vaccine dose would be considered “reasonable.”
    • If an employee has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from vaccine side effects. Employers cannot require employees to use accrued vacation time, unless the employer does not distinguish between sick leave and vacation time.
    • If an employee does not have available sick leave, leave must be provided for this purpose. Employers cannot require employees to accrue negative paid sick leave or borrow against future paid sick leave.

The ETS does not require employers to grant paid time to employees if they choose to receive the vaccine outside of work hours. However, employers must still afford employees reasonable time and paid sick leave to recover from side effects that they experience during scheduled work hours.

The ETS notes that other federal, state, or local laws, or collective bargaining agreements may require an employer to provide employees additional paid time off for vaccination and/or time to recover from side effects.

COVID-19 Testing & Face Coverings for Employees Who Are Not Fully Vaccinated

Covered employers must ensure employees who are not fully vaccinated (including those entitled to a reasonable accommodation) and report to a workplace with other individuals (e.g., coworkers, customers) (1) undergo regular testing by January 4, 2022 and (2) wear a face covering when indoors and around other individuals by December 5, 2021. If an employee does not provide the result of a COVID-19 test as required, the employer must keep the employee removed from the workplace until the employee provides a test result.

Required COVID-19 Testing:

  • Employees who report at least once every 7 days to a worksite where other individuals are present must:
    • Be tested for COVID-19 at least once every 7 days;
    • Provide documentation of the most recent COVID-19 test result no later than the 7th day following the date in which the last test result was provided (regardless of their work schedule); and
    • Be removed from the workplace and not be permitted to return if they test positive (discussed further in the “Positive Test/Diagnosis and Removal” section below).
  • Employees who are away from the worksite where other individuals are present 7 or more days (e.g., teleworking for two weeks prior to reporting to a workplace with others) must:
    • Be tested within 7 days prior to returning to the workplace; and
    • Provide documentation of the test result to the employer upon return to the workplace.

Unvaccinated employees who work remotely and do not report to the workplace do not need to submit weekly COVID-19 testing because they are not covered by the ETS.

Documentation and Retention of Tests: Employer policies must specify how testing will be conducted, how employees should provide their COVID-19 test results, and what tests are permitted. The ETS outlines approved COVID-19 tests and notes that at-home COVID-19 tests are not acceptable unless observed by the employer or an authorized telehealth proctor.

Test results are employee medical records that must not be disclosed except as required by the ETS and/or other federal laws. Employers must maintain a record of each test result provided by employees while the ETS remains in effect.

Payment of COVID-19 Tests: The ETS does not require covered employers to pay for the costs associated with testing, though employers may be required by other laws, regulations, or collective bargaining agreements to cover testing costs.

Employers do have the option of covering testing costs and should be aware that carriers and group health plans are not currently required to cover the cost of testing for employment purposes under the Families First Coronavirus Response Act (FFCRA), as amended by the CARES Act (which only requires group health plans cover the cost of medically necessary COVID-19 testing during the COVID-19 Public Health Emergency, which has been extended to January 16, 2022, and may be further extended). See Q&A #5 of the FFCRA FAQ.

Required Face Coverings: Covered employers must ensure that employees who are not fully vaccinated wear a face covering when indoors or occupying a vehicle with another person for work purposes.

Exceptions to the face covering requirement include:

  • When an employee is alone in a room with floor to ceiling walls and a closed door;
  • For a limited time while an employee is eating or drinking at the workplace;
  • For identification purposes in compliance with safety and security requirements (e.g., temporary removal of a face covering is permitted at a security checkpoint within a worksite when identification is required);
  • When an employee is wearing a respirator or facemask in accordance with other OSHA standards; or
  • Where an employer can show the use of a face covering is infeasible or creates a greater hazard (e.g., situations where is it important to see an employee’s mouth for reasons related to job duties).

Employees who may not be able to wear a face covering due to a disability or sincerely held religious belief (e.g., religious garb or grooming) are entitled to an accommodation. Employers should evaluate requests for accommodation under applicable laws.

Employers are prohibited from preventing any employee from wearing a face covering unless the employer can demonstrate that doing so would create a hazard of serious injury or death. In addition, employers cannot prohibit customers or visitors from voluntarily wearing a face covering or mask.

The ETS does not require employers to cover the cost of face coverings, though employers can choose to pay for such costs.

Positive COVID-19 Test/Diagnosis and Removal

By December 5, 2021, covered employers must, regardless of vaccination status:

  • Require employees to promptly notify the employer when they receive a positive COVID-19 test or diagnosis; and
  • Immediately remove employees who receive a positive COVID-19 test or diagnosis until the employee:
    • Receives a negative result on a COVID-19 NAAT test following a positive result from an COVID-19 antigen test, if the employee chooses to seek a NAAT test for confirmation of the positive test result;
    • Meets the return criteria in the CDC’s “Isolation Guidance,” which generally states a positive person can stop isolating when 3 criteria are met: (1) at least 10 days have passed since the first appearance of symptoms (or if the person never experiences symptoms, the person can stop isolating after 10 days of their positive test); (2) the person has gone at least 24 hours without a fever and without using fever-reducing medicine; and (3) the person’s other COVID-19 symptoms are improving (excluding loss of taste and smell); or
    • Receives a recommendation to return to work from a licensed healthcare provider.

The employer can require the employee to work remotely or in isolation if suitable work is available and if the employee is not too ill to work. The ETS encourages employers to consider flexible and creative solutions, such as temporary assignment to a different position that can be performed by telework. If an employee is too ill to work, remote work should not be required, and sick leave or other leave should be made available consistent with an employer’s general policies and practices, and as required under applicable laws.

The ETS does not require employers to provide paid time off to any employee for removal because of a COVID-19 test or diagnosis; however, paid time off may be required by other laws (e.g., workers compensation), regulations, or collective bargaining agreements.

Notice to Employees

By December 5, 2021, covered employers must provide the following required information to employees in a language and literacy level employees understand:

  1. Any policies and procedures the employer establishes to comply with the ETS (OSHA provides sample policies here);
  2. Information to each employee about COVID-19 vaccine efficacy, safety, and benefits of being vaccinated (to meet this requirement, employers can provide the CDC’s document, “Key Things to Know About COVID-19 Vaccines”);
  3. Information about laws that protect employees against retaliation or discrimination for reporting work-related injuries or illness or exercising rights under the ETS (OSHA provides a fact sheet available in English and Spanish); and
  4. Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation (OSHA provides a fact sheet available in English and Spanish).

Method of Notice: Employers may choose any method of notifying employees (e.g., email, printed fact sheets, discussion at a regularly scheduled team meeting) so long as each employee receives the information in a language and literacy level they understand.

Frequency of Notice: The ETS does not specify the frequency in which employers must provide this information; however, employers must provide any updated information to employees if their policies or procedures change.

OSHA Reporting

As of December 5, 2021, covered employers must report the following to OSHA:

  • Each work-related COVID-19 fatality within 8 hours of learning about the fatality; and
  • Each work-related COVID-19 in-patient hospitalization within 24 hours of learning about the hospitalization.

When determining whether the COVID-19 fatality or in-patient hospitalization is “work-related,” employers should follow OSHA’s recordkeeping regulation at 29 CFR 1904.5. OSHA has also prepared a fact sheet on this reporting requirement.

Availability of Records and Record Retention

Covered employers must maintain proof of vaccination, a roster of employee vaccination status, and COVID-19 test results for the duration of the ETS. In addition, covered employers must make the following records available:

  • Within 1 business day of a request by an employee or their representative, that employee’s COVID-19 vaccine or test documentation and/or the total number of vaccinated employees at the workplace along with the total number of employees at the workplace.
  • Within 4 business hours of a request by OSHA, the employer’s written policy (as required by the ETS) and the total number of vaccinated employees at the workplace along with the total number of employees at the workplace.
  • Within 1 business day of a request by OSHA, the above documents employers are required to maintain during the ETS.

Employer Action

Employers that have 100 or more employees as November 5, 2021 must comply with all ETS provisions (except the testing requirements) by December 5, 2021 and the testing requirements by January 4, 2021. The OSHA fact sheet outlines the ETS employer requirements.

Employers who later hit the 100-employee threshold during the ETS effective period (which is projected to end on May 5, 2022), is subject to the above requirements for the subsequent duration of the ETS.

Covered employers can take the following steps to prepare for compliance:

  1. Determine whether to implement a mandatory vaccination policy or permit the weekly testing/face covering option (and whether to apply different policies to different sectors of your workforce);
  2. Determine the process of collecting and maintaining vaccination status of all employees, including what “acceptable proof” of vaccination employees must provide;
  3. Determine the process for collecting weekly COVID-19 test results and requiring indoor face coverings for employees who choose not to get vaccinated (if permitted under the policy) or for employees who fall into a vaccine exception (e.g., employees who request a religious or disability accommodation) if present at a worksite with other individuals;
  4. Design a paid time off policy for vaccination and vaccine recovery that complies with the ETS, at a minimum (OSHA provides guidance on a removal policy in their sample policies);
  5. Develop a policy on the removal of employees who have a positive COVID-19 test or diagnosis, including how the employee will work during their removal and when they can return back to a worksite (OSHA provides guidance on a removal policy in their sample policies);
  6. After determining the above, develop a written policy that complies with the ETS requirements (if an existing policy is already in place, evaluate the policy to ensure it satisfies the requirements of the ETS);
  7. Develop communications to inform employees of the vaccine policy, requisite anti-discrimination and anti-retaliation provisions (see OSHA fact sheet), the CDC’s Key Things to Know About COVID-19 Vaccines, and criminal penalties associated with knowingly falsifying information (see OSHA fact sheet);
  8. Collect and maintain vaccination status from employees, proof of vaccination, COVID-19 test results (where necessary), and a roster of employee vaccination status for the duration of the ETS;
  9. Collect requests for religious and disability exceptions and address accommodations accordingly;
  10. Enforce the policy, including the testing, face covering, and removal requirements;
  11. Report any work-related COVID-19 fatalities or in-patient hospitalizations within the time period required by the ETS; and
  12. Retain records and promptly respond to any requests for records by employees or OSHA .

Please note that Sequoia Workplace has tech-enabled capabilities that provide a streamlined solution to address many of the compliance challenges mentioned above and it can help your business more confidently stay compliant. Sequoia Workplace offers vaccination & COVID-19 test tracking and COVID-19 policy design capabilities. Please reach out to your Sequoia Client Service team to learn more about how Sequoia Workplace can assist you.

Additional Resources

Disclaimer: This content is intended for informational purposes only and should not be construed as legal, medical or tax advice. It provides general information and is not intended to encompass all compliance and legal obligations that may be applicable. This information and any questions as to your specific circumstances should be reviewed with your respective legal counsel and/or tax advisor as we do not provide legal or tax advice. Please note that this information may be subject to change based on legislative changes. © 2022 Sequoia Benefits & Insurance Services, LLC. All Rights Reserved

Emerald Law — Emerald is a Senior Compliance Consultant for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Emerald enjoys stand-up comedy, live music, and writing non-fiction.