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COVID-19 Vaccine Information

OSHA ETS Information

OSHA COVID-19 Vaccination and Testing: Emergency Temporary Standard

Summary: OSHA is issuing an emergency temporary standard (ETS) requiring that covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear face coverings at work in lieu of vaccination.

— Updated January 10, 2022 —

Following the U.S. Court of Appeals for the Sixth Circuit’s decision to dissolve the Fifth Circuit Court’s stay on the Vaccination & Testing Emergency Temporary Standard (ETS) in late December, the Occupational Safety & Health Administration (OSHA) is proceeding with the implementation and enforcement of the ETS.  Below are key compliance dates, along with resources offered by OSHA to assist employers impacted by the ETS.  

While the decision of the Court of Appeals for Sixth Circuit is being challenged in the U.S. Supreme Court and Supreme Court Justices heard oral arguments on 1/7/22 it is unclear currently when and how the Court will ultimately decide the case.  They could decide to allow the ETS to continue or they could stay the Sixth Circuit Court’s decision which would halt OSHA’s implementation and enforcement of it.  Given the uncertainty, credit unions impacted by the ETS should continue their efforts to comply with the ETS until the U.S. Supreme Court renders a decision.  As indicated, if the Court ultimately decides to stay the ETS OSHA would be unable to continue to enforce the requirements; however, that may not be the end of the road and employers would need to see if the OSHA decides to put forth another ETS or set of requirements they feel would satisfy the Court.

Effective/compliance dates:

  • January 10, 2022: All provisions of the ETS except for testing will be enforced by OSHA beginning on this date.  This includes the requirement that employers determine the vaccination status of each employee and develop a written policy in line with the ETS. 
  • February 9, 2022: Testing requirements under the ETS for all employees who have not received all doses required for a primary vaccination and who report to a workplace where coworkers or customers are present go into effect on this date.

The OSHA ETS Requires establishing and implementing a written mandatory COVID-19 vaccination policy or alternative policy requiring testing and face coverings; determining employee vaccination status; supporting employee vaccination by providing paid time for vaccination and time off for recovery; ensuring that employees who are not fully vaccinated are tested for COVID-19 at least once every seven days and wear face coverings; and recordkeeping for employee vaccination status and testing.

Key Takeaways:

  • 100 Employee Threshold: In determining whether the ETS applies to you, employers must look at and include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work. Part-time employees do count towards the company total, but independent contractors do not count towards your employee count. Employees who work remotely are still included in a company’s total employee count. Employers who employ less than 100 people are not subject to the ETS requirements.
    • Determination of whether an employer falls within the scope of this ETS based on number of employees should initially be made as of the effective date of the standard. If the employer has 100 or more employees on the effective date, this ETS applies for the duration of the standard. If the employer has less than 100 employees as of the effective date the standard would not apply unless the employer hired additional employees, reaching the 100+ employee number. Then at that time that the employer hits that 100th employee, they would be required to adhere to the ETS. Once an employer comes within the scope of the ETS they continue to be covered under the ETS until such time the ETS expires regardless of if their employee count drops below 100.
  • Mandatory Vaccine Policy or Policy for Testing and Masking: The OSHA ETS allows employers to determine if they want to put into place a mandatory vaccine policy for their employees or if they instead want to elect a policy for testing and masking for unvaccinated employees.
    • Mandatory Vaccine Policy Requirements:
      • Establish, implement and enforce a written mandatory vaccination policy which requires vaccination of all employees, including vaccination of all new employees as soon as practicable other than those employees (1) for whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination or (3) who are legally entitled to a reasonable accommodation under federal civil laws because they have a disability or sincerely held religious beliefs, practices or observances that conflict with the vaccination requirement.
    • Policy for Testing and Masking:
      • Employers can avoid the requirement of a mandatory vaccine policy by establishing, implementing and enforcing a policy requiring regular testing and masking for employees who do not wish to or who are unable to get vaccinated.
      • Regular testing means testing that is done by the employee at a minimum frequency of seven days.
        • The employee must provide their results to their employer no later than the seventh day following the date the employee last provided a test result.
      • Employers must also ensure that employees who are not fully vaccinated and do not report during a period of seven or more days to a workplace where other individuals are present are: (1) tested for COVID-19 within seven days prior to returning to the workplace; and (2) provide documentation of that test result upon returning to the workplace.
        • This means that if you have an employee(s) who work from home for a period of time and are unvaccinated but, are required to come into the office once a month, they would only be required to test in the seven days prior to their return to the office and would be required to show proof of their negative test prior to or upon their return to the office.
      • Employees who test positive must be removed from the workplace upon their positive test/COVID-19 diagnosis.
      • Employees who are undergoing regular testing in lieu of getting the vaccine must wear a mask when working near others.
      • Acceptable COVID-19 Tests under the ETS: Employees who are not fully vaccinated must be tested with a COVID-19 test, which is a test for SARS-CoV-2 that is: (i) cleared, approved, or authorized, including in an Emergency Use Authorization (EUA) by the FDA to detect current infection with the SARS-CoV-2 virus; (ii) administered in accordance with the authorized instructions; and (iii) no both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
  • Determination of Employee Vaccination Status:
    • Employers who fall under this ETS are required to determine the vaccination status of each employee, maintain records of each employee’s vaccination status, preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, and maintains a roster of each employee’s vaccination status.
      • “Acceptable proof of vaccination” means: (i) the record of immunization for a health care provider or pharmacy; (ii) a copy of the COVID-19 Vaccination Record Card; (iii) a copy of medical records documenting the vaccination; (iv) a copy of immunization records from a public health, state, or tribal immunization information system; or a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s0 administering the vaccine(s). A signed and dated employee attestation is acceptable in instances when an employee is unable to provide proof of vaccination.
    • Employers do not have to reverify every employee who has already submitted a proof of vaccination prior to 11/5/21. If employee after 11/5/21, says they are vaccinated, the employer will be required to verify this information.
  • Record Keeping Requirement: Employers must maintain a record and a roster of each employee’s vaccination status. The information is subject to applicable legal requirements for confidentiality of medical information. The records must be preserved while the ETS is in effect. Records of employees who are undergoing regular testing must also be kept. Including whether the employee tested positive or negative for each of the regular COVID-19 tests.
    • Records are not subject to the retention requirements of 29 CFR 1910.1020(d)(1)(i) but must be maintained and preserved while the ETS is in effect.
    • These records must be maintained as confidential medical records and must not be disclosed except as required or authorized by this ETS or other federal law.
  • Employees are required to be paid for the time it takes to get their vaccination(s). Each employer is required to provide each employee four hours of paid time for each shot(s). This paid leave is capped at four hours and if it takes the employee longer than the allotted 4 hours, this would be considered unpaid but protected leave. This leave may not be offset by any other leave that the employee has accrued, such as sick leave or vacation time.
  • Paid Sick Leave for Side Effects of COVID-19 Vaccine: Employers to support COVID-19 vaccination must provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose to each employee for each dose. The paid sick leave required here can be in the form of an employee’s accrued sick leave, if available. If the employee does not have available sick leave, leave must be provided for this purpose.
  • Employees who telework/are fully remote. For those who work from their homes, or from workplaces where no other people are present (such as a remote worksite) are exempted for regular testing requirements/vaccination policies. They would not be subject to mandatory weekly testing and masking requirements if they choose to not be vaccinated.
  • Employees who were previously infected with COVID-19. Employees who were previously infected with COVID-19 and are not vaccinated are required to be tested and wear masks if they are unable to vaccinate at this time and/or if they chose not to be vaccinated.
  • Workers are considered fully vaccinated: after completing primary vaccination with a COVID-19 vaccine, or the second dose of any combination of two-dose primary vaccination by the FDA or WHO.
  • Who Pays for the Tests: Employers are not required to pay for the costs associated with regular COVID-19 testing or the use of face coverings (the state MIOSHA guidance may differ here-- Additional information will be available once MIOSHA’s state plan is finalized).

  • What happens if my employee(s) cannot find tests? Both OSHA and MIOSHA have said that if the employee and/or the employer are actively seeking a COVID-19 test (and document this) that they will not be penalized for not being able to secure a test.

Definitions:

  • COVID-19 test: means a test for SARS-CoV-2 that is (1) cleared, approved or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus; (2) administered in accordance with the authorized instructions; and (3) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
  • Fully vaccinated: means (i) a person’s status 2 weeks after completing primary vaccination with a COVID-19 vaccine with, if applicable, at least the minimum recommended interval between doses in accordance with the approval, authorization or listing that is: (A) approved or authorized for emergency use by the FDA; (B) listed for emergency use by the World Health Organization (WHO); or (C) administered as part of a clinical trial at U.S. site, if the recipient is documented to have of primary vaccination with the “active” (not placebo) COVID-19 vaccine candidate, for which vaccine efficacy has been independently confirmed. Or if the clinical trial participant from the U.S. sites had received a COVID-19 vaccine that is neither approved nor authorized for use by the FDA but is listed for emergency use by the WHO.
  • Workplace: is defined as a physical location where the employer’s work or operations are performed. It does not include an employee’s residence, even if the employee is teleworking from their residence.

Additional Resources

Fact Sheets

COVID-19 Vaccine Website

SAFE, EFFECTIVE VACCINE

Click here to visit the website

COVID-19 Vaccine FAQs

The information in this document will change frequently as we learn more about COVID-19 vaccines. There is a lot we are learning as the pandemic and COVID-19 vaccines evolve. The approach in Michigan will adapt as we learn more.

Click Here to view the COVID-19 Vaccine FAQs.

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