OSHA Directive Requires a Written COVID-19 Vaccination Policy

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP December 21, 2021

[Update: On Jan. 13, the U.S. Supreme Court blocked OSHA's vaccine-or-testing rule for large private employers.]

Now that a federal appeals court has revived the Occupational Safety and Health Administration's (OSHA's) emergency temporary standard (ETS), covered employers will need to prepare a written COVID-19 vaccination-or-testing policy by Jan. 10.

Under the ETS, employers may choose to require vaccination or allow covered employees who are unvaccinated to wear a mask and provide proof of a negative COVID-19 test on a weekly basis. The start date for the testing requirement has been extended to Feb. 9, but many other components of the ETS take effect on Jan. 10, such as the requirement for employers to determine the vaccination status of each employee and develop a written policy.

"Keep it simple," recommended Eric Hobbs, an attorney with Ogletree Deakins in Milwaukee. "Do not include anything in the plan that you can't follow through on."

A federal appeals court had temporarily suspended the ETS while it considered a challenge brought by state attorneys general and private employers that oppose the directive, but on Dec. 17, the 6th U.S. Circuit Court of Appeals lifted the stay in a consolidated action.

Although the U.S. Supreme Court has been asked to weigh in, employment law attorneys say businesses shouldn't wait for a final answer from the courts to start planning.

"There's just not enough time to get ready for the ETS if you don't start now," said Julie Vanneman, an attorney with Dentons in Pittsburgh.

Kristin White, an attorney with Fisher Phillips in Denver, recommended that employers provide notices and start gathering employee vaccination information now. "Then, they can hold off on finalizing the plan and testing for a couple of weeks while they gather vaccine information and the litigation moves forward."

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Since the ETS establishes minimum requirements for covered businesses, employers may also choose to implement a vaccination policy regardless of the litigation outcome.

Here are some considerations for employers as they develop their plan.

1. Review existing policies and OSHA's templates.

Many employers have already implemented COVID-19 vaccination and testing policies, and OSHA said the ETS isn't meant to force employers to duplicate their efforts. "Employers might be able to use those existing policies, but they need to make sure they are incorporating OSHA's rules," Vanneman said. 

Employers should add any missing elements and notify employees about the changes. In accompanying FAQs, OSHA said a "comprehensive and effective" policy would include information about:

  • Requirements for COVID-19 vaccination.
  • Applicable exclusions from the written policy, such as medical contraindications, medical necessity requiring delay in vaccination, and reasonable accommodations for workers with disabilities or sincerely held religious beliefs.
  • How confirmation of an employee's vaccination status will be collected.
  • Available paid time off and sick leave for vaccination purposes.
  • The notification process for when employees test positive for COVID-19 and how to remove them from the workplace.
  • How employees can access more information about the ETS, company policies, and vaccine safety and efficacy.
  • What disciplinary action will be taken when employees do not follow the policy.

According to OSHA's FAQs, the plan should address applicable effective dates and deadlines, who is covered by the policy, and the procedures for compliance and enforcement. Additionally, information should be provided to each employee "in a language and at a literacy level the employee understands."

OSHA provided templates on its website that cover both a vaccination mandate and a policy that allows for testing and masking. 

"Having a comprehensive written policy will provide a solid foundation for an effective COVID-19 vaccination program, while making it easier for employers to inform employees about the program-related policies and procedures," the agency said.

2. Decide whether masking and weekly testing will be an option.

Employers that choose not to mandate vaccination will need to ensure unvaccinated workers submit weekly COVID-19 test results until they are fully vaccinated or the ETS expires.

Employers will want to start by gathering employee vaccination information so they can then consider how they would comply with the masking and testing alternative, White suggested. "If workplaces have low vaccination rates, testing is going to be more complicated and potentially costly, so this must be a factor in developing the program."

Create a secure method for storing the data, she said, and let employees know how to submit information.  

Vanneman noted that employers that opt for masking and testing must be prepared to enforce the rules or potentially face consequences from OSHA for noncompliance.

According to OSHA, "Only employees who are not fully vaccinated are required to wear a face covering under the standard when indoors and when occupying a vehicle with another person for work purposes." The agency noted that there are some exceptions, including for employees who are alone in an enclosed room, eating or drinking, or wearing a respirator.

"However, the employer must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering or facemask unless the employer can demonstrate that doing so would create a hazard," OSHA explained.

Vanneman said employers should be very clear about who will pay for testing and what the consequence will be for noncompliance.

3. Decide whether to have an organizationwide or partial mandate.

OSHA noted that some employers may want to mandate vaccination for only a part of the workforce. As an example, the agency said a retail corporation may want to require customer-facing employees to get vaccinated and allow corporate employees to mask and test or work remotely. Notably, the ETS doesn't apply to fully remote workers or those who work only outdoors.

4. Develop a process to handle reasonable accommodation requests.

Unvaccinated employees who are entitled to a reasonable accommodation from vaccination requirements still must submit to weekly COVID-19 testing. "However, if testing for COVID-19 conflicts with a worker's sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation," OSHA said.

Employers should follow anti-discrimination guidelines from the Equal Employment Opportunity Commission and state agencies when reviewing employee requests for reasonable accommodations.

5. Communicate with employees.

Although employers are not required to submit the written plan to OSHA (unless it is requested), they should ensure workers know how to access the plan.

"The most important thing the employer can keep in mind is that the way a message is communicated is almost everything," Hobbs said.

[SHRM members-only HR form: ETS Memo to Employees]

Vanneman recommended starting with a message that the policy is meant to encourage health and safety in the workplace. "Drafting this policy should be a team effort," she said. "Consult various stakeholders before implementing the policy."

Employers should remember to make room for flexibility. "As with most COVID policies since March 2020, recognize that the policy is going to change and provide for that flexibility," White said.  



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