November 4, 2021

Today, the Occupational Safety and Health Administration (OSHA) issued a pre-publication version of the Emergency Temporary Standard (ETS) to carry out the September 9 Executive Order (EO) requiring companies with 100 or more employees to mandate vaccinations or take weekly COVID-19 tests. The final version is scheduled for publication in the Federal Register tomorrow.

SOCMA has closely monitored this issue since the EO announcement and has completed an initial review of the ETS. We will follow-up with a more thorough analysis in the coming days, but below are a few critical initial takeaways about how the ETS will impact your company and employees.

Employer Requirements:
  • Employers must properly inform employees about the ETS.
  • Employers must develop, implement and enforce a written mandatory COVID-19 vaccination policy.
  • The plan must require employees be vaccinated, or undergo weekly testing and wear a mask.
  • Religious belief and health exemptions apply
  • Employers must ascertain the vaccination status of each employee.
  • Employers must give up to four hours of paid leave to employees to get vaccinated and may not force employees to use sick or personal time.
  • Employers must require employees to promptly report a positive COVID-19 test, or if they are diagnosed with COVID-19.
  • Employers must immediately remove employees diagnosed with or who receive a positive COVID-19 test.

  • Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained, if convicted, will be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or by both.
  • Knowingly and willfully:
  1. falsifying, concealing, or covering up by any trick, scheme, or device a material fact;
  2. making any materially false, fictitious, or fraudulent statement or representation; or
  3. making or using any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years.
  • A separate penalty can be applied for each individual violation, meaning each false record, etc., is an individual violation.

Effective Date:
  • Employers must comply with the ETS 30 days after publication (Sunday, December 5, 2021)
  • Employees must be fully vaccinated within 60 days (Tuesday, January 4, 2022)
  • Unvaccinated employees must comply with testing requirements 60 days after publication (Tuesday, January 4, 2022)
  • OSHA anticipates that the ETS will be in effect for six months from the date of publication in the Federal Register (Thursday, May 5, 2022). However, OSHA will continue to monitor trends in COVID-19 infections and deaths and will update the ETS as appropriate.

Definition for the 100 Employee Threshold:
  • The count should be done at the employer level (firm or corporate-wide), not by individual facility. All employees at all facilities count towards the 100, and once that threshold is met, all facilities/sites/offices must comply.
  • For example, if a single corporation has 50 small locations with at least 100 total employees in its combined locations, that employer would be covered, even if some of the locations have no more than one or two employees assigned to work there.
  • Part-time employees do count towards the 100-employee threshold, but independent contractors do not.
  • While employees who work from home full time count in the 100-employee total, the ETS requirements (vaccination, testing etc.) do not apply to employees who work from home full time.

Fully Vaccinated Threshold:
  • Employees who receive the single-dose Janssen (Johnson & Johnson) must be vaccinated by Tuesday, January 4, 2022 to be exempt from testing requirements.
  • Employees receiving the Pfizer-BioNTech vaccine series have to get the first dose on or before Tuesday, December 14, 2021 and the second dose 21 days later.
  • Employees receiving the Moderna vaccine series have to receive the first dose on or before Tuesday, December 7, 2021 and the second dose 28 days later.

Test requirements:
  • The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
  • Employees may use any COVID-19 test cleared, approved or authorized (including emergency-use authorization or EUA) by the FDA. It may be a molecular diagnostic test or antigen test. 
  • Tests must be administered in accordance with the instructions, but tests may NOT be both self-administered and self-read.
  • Valid tests include over-the-counter (OTC) employee self-tests observed by employers or authorized telehealth proctors; point-of-care (POC) or OTC tests performed by employers with a CLIA certificate of waiver; and other FDA cleared, approved, or authorized antigen tests that are analyzed in a CLIA certified laboratory setting.
  • Unvaccinated remote employees do not have to comply with weekly COVID-19 testing.
  • However, if an unvaccinated remote employee goes to the workplace, the employee must have a negative test in the preceding seven days.

Record-keeping requirements:
  • Employers must maintain a record of each employee’s vaccination status.
  • The record must include verification of vaccination:
  • the record of immunization from a health-care provider or pharmacy;
  • a copy of the U.S. 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; 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(s) administering the vaccine(s).
  • Employers must also maintain a record of each test result provided by each employee.
  • Employers are not required to cover the cost of testing.
  • These records must be maintained as confidential medical records and cannot be disclosed except as required or authorized by this ETS or other federal law.
  • The records are not subject to the retention requirements of OSHA’s access to employee exposure and medical records standard (29 CFR 1910.1020(d)(1)(i)) but must be maintained and preserved while the ETS is in effect.
  • The ETS does not require employers to monitor or detect fraud.

  • The ETS preempts and invalidates any state or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing.
  • Unionized workplaces must comply with the ETS.
  • Employees who have previously contracted COVID-19 must comply the ETS requirements.

SOCMA is analyzing the full text of the ETS and will provide a detailed analysis and compliance tools. In the meantime, OSHA has provided:

SOCMA is completing additional analysis and will provide greater insight to assist with compliance. In the meantime, if you have additional questions, please contact Robert F. Helminiak at  

Kind regards,