• December 5, 2021. Employers must have their policies and procedures in place as every requirement except for weekly testing of unvaccinated employees goes into effect on that date. Such requirements include determining the vaccination status of all employees, mandatory face coverings for unvaccinated employees, paid vaccination leave, recordkeeping and reporting requirements, and informing employees of the employer’s policies and procedures.

• December 5, 2021. States with OSHA-approved “State Plans” (e.g., California) must issue their own ETS that is at least as effective as OSHA’s. Employers in these states will need to comply with the ETS issued by their state.

• January 4, 2022. Unvaccinated employees cannot enter the workplace unless they submit weekly negative COVID-19 test results.

• Calculating Employees for the Threshold. The calculation of employees for purposes of the 100 employee threshold is done at the employer level (firm or corporate wide), not the individual location level. Thus, a single employer with multiple locations must count all of its employees at all locations.

• Fluctuating Workforces. If an employer has 100 or more employees at any time while the ETS is in effect, it is covered by the ETS until the standard is no longer in effect. For example, if an employer has 103 employees in February and then drops to 70 employees the next month, it will remain covered by the ETS.  

• Part-time Employees. They are counted for purposes of the threshold.

• Temporary & Seasonal Employees. They are counted if employed directly by the employer.

• Independent Contractors. They are excluded from the calculation.

• Employees from Staffing Agencies. Where employees of a staffing agencies are placed at a host employer location, only the staffing agency counts the workers for purposes of the threshold.

• Franchisor/Franchisee Relationships. If a traditional franchisor-franchisee relationship exists, in which each franchise location is independently owned and operated, the franchisor would only count “corporate” employees and each franchisee would only count employees of that individual franchise.

• Federal Contractors & Subcontractors. Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors are exempt.

• Healthcare Settings. Settings covered by the Healthcare ETS are exempt.

• Working Alone. Employees who do not report to a workplace where other persons are present (e.g., coworkers or customers).

• Telework. Employees who work from home.

• Work Exclusively Outdoors. An employee works “exclusively outdoors” if he or she: (1) works outdoors on all days (i.e., an employee who works indoors on some days and outdoors on other days would not be exempt); (2) does not routinely occupy vehicles with other employees as part of work duties (i.e., does not drive to worksites together in a company vehicle); and (3) works outdoors for the duration of every workday except for brief and minor use of indoor spaces where other individuals may be present.

• Record of immunization from a healthcare provider or pharmacy;

• Copy of COVID-19 vaccination record card;

• Copy of medical records documenting the vaccination;

• Copy of immunization records from a public health information system; or

• Copy of other official documentation that contains the type of vaccine administered, date(s) of administration, and name of health care professional or clinic that administered the vaccine. 

• When alone in a room with floor to ceiling walls and a closed door;

• For a limited time when eating or drinking in the workplace;

• For a limited time for identification purposes in compliance with safety and security requirements; or

• Where the use of face coverings is infeasible or creates a greater hazard.

• Completely cover nose and mouth;

• Is made with two or more layers of a breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source);

• Is secured to the head with ties, ear loops, or elastic bands that go behind the head;

• Fits snugly over the nose, mouth, and chin with no large gaps on the outside of the face; and

• Is a solid piece of material without slits, exhalation valves, visible holes, punctures, or other openings.

• Each employee’s vaccination status;

• Preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated;

• A roster of each employee’s vaccination status; and

• Each COVID-19 test result provided by employees.

• Meets the return to work criteria in the CDC’s “Isolation Guidance;”

• Receives a recommendation to return to work from a licensed healthcare provider; or

• Receives a negative result from a nucleic acid amplification test (NAAT) if the initial positive test result was from an antigen test.

• The requirements of the ETS and the employer’s implementing policies and procedures (i.e., the written policy);

• Provide the CDC document “Key Things to Know About COVID-19 Vaccines”;

• That the employer is prohibited from discriminating against an employee for reporting a work-related injury or illness or as a result of exercising any rights under the ETS; and

• That employees will be subject to criminal penalties for knowingly supplying false statements or documentation.

• be tested for COVID-19 once every seven days; and

• provide documentation of their most recent COVID-19 test result to their employer within seven days of their previous test result.

• Acceptable Tests. A COVID-19 test is only acceptable if it: (1) is cleared, approved, or authorized (including by Emergency Use Authorization) by the FDA to detect current infection with SARS-CoV-2 (e.g., a viral test); (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.

• Antigen (“Rapid”) Tests. Over the counter antigen tests approved by the FDA are acceptable COVID-19 tests. However, if the test is self-administered then it must be observed by either the employer or an authorized telehealth proctor.

• Antibody Tests. Antibody tests and other tests that do not detect current infection are not acceptable.

• Testing After a Positive Result. If an employee receives a positive test result or has been diagnosed with COVID-19, the employer cannot require that employee to undergo COVID-19 testing for a period of 90 days.

• Exception for Those Who Receive Final Vaccination Dose Close to January 4th. Employees who have received their final vaccination dose before January 4th, but 14 days have not passed since their final dose do not need to be tested.

• Paying for Testing. The ETS does not require employers to pay for the cost of the COVID-19 test or the time spent taking the test. However, the ETS states that employers may be otherwise required to pay for testing costs under other laws. Thus, employers in states like California are required to pay for the cost of the test and any time spent receiving the test.

• Special Note for Unionized Employers. The National Labor Relations board announced on Wednesday that unionized employers have a duty to bargain over any discretionary aspect of the OSHA ETS before implementation. In addition, employers are obligated to engage in effects bargaining over the impact of the rule on union members before implementing the policy.