As we initially reported here, OSHA published the highly anticipated Emergency Temporary Standard (ETS) requiring full COVID-19 vaccination or weekly testing plus face coverings for onsite, unvaccinated workers of businesses with 100+ employees.
Since OSHA’s publication on November 4, 2021, it’s been like watching an Olympic ping-pong match: blink and you’re behind.
First, the OSHA ETS was “stayed” (halted) by the Fifth Circuit Court of Appeals on November 5, 2021, only to be un-stayed (dissolved) by the Sixth Circuit Court of Appeals on December 17, 2021. The U.S. Supreme Court declined to re-enter the stay, but will hear oral arguments regarding the OSHA ETS on Friday, January 7, 2022. The problem? The first OSHA ETS deadlines go into effect just 3 days later on Monday, January 10, 2022, with weekly testing enforcement set to begin on Wednesday, February 9, 2022.
Amidst this legal chaos, OSHA has issued updated guidance regarding the weekly testing requirement for applicable onsite, unvaccinated employees. For a full review of OSHA’s updated guidance, please visit: https://www.osha.gov/coronavirus/ets2/faqs.
Here is our summary of the most helpful OSHA updates on weekly testing:
- K. May a COVID-19 over-the-counter-test from a local pharmacy be used to satisfy the testing requirements under paragraph (g)?
“Yes; however, to satisfy the requirements of the standard an over-the-counter (OTC) test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.” Independent confirmation of test results can also be accomplished through home tests “that feature digital reporting of date and time stamped results” through smartphones since these home tests are “not considered to be ‘self-read’ and therefore observation by the employer or an authorized telehealth proctor is not required.”
- Q. Do over-the-counter (OTC) tests that feature digital reporting of date and time stamped results need to be observed by the employer or an authorized telehealth proctor?
No, digitally-read home tests do not need to be observed. “A digitally-read test, which produces a date and time stamped result (e.g., results available through an app, QR code, RFID), is not considered to be ‘self-read’ under the ETS and therefore would not require observation by an employer or an authorized telehealth proctor in order to satisfy the requirements of the ETS. Tests that are digitally read in this way reduce the potential for falsified results by ensuring a new test result is generated each week and each test is used only once.”
- S. Is a self-administered and self-read COVID-19 test acceptable under the ETS if an employee submits a photograph of the test results to their employer after?
“No. To be a valid COVID-19 test under this standard, a test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. OSHA included the requirement for some type of independent confirmation of the test result in order to ensure the integrity of the result. . . Photographs of test results are not a substitute for observation by the employer or an authorized telehealth proctor.”
- V. May employers remotely observe the self-administration of over-the-counter (OTC) tests via a live streaming video conference program, such as Zoom, Skype, or Microsoft Teams?
“Yes. . . The employer may validate the test through the use of a proctored test that is supervised by an authorized telehealth provider. . . [or] the employer could proctor the OTC test itself (e.g., at the worksite or via a live streaming video conference).”
- E. How do the testing requirements apply to those employees who previously tested positive for COVID-19?
“The standard provides that when an employee has received a positive COVID-19 test, or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer must not require that employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis. This provision is specifically intended to prohibit screening testing for 90 days because of the high likelihood of false positive results that do not indicate active infection but are rather a reflection of past infection. However, when the employee returns to work they must continue to wear a face covering in accordance with paragraph (i) of this ETS.” (Emphasis added).
- F. Do I have to maintain a copy of each COVID-19 test result for each of my unvaccinated employees?
“Yes. The employer must [confidentially] maintain a record of each test result . . . while this ETS remains in effect.”
- W. If an employer observes or conducts over-the-counter COVID-19 tests, how should the employer document the results?
“Employer-observers may document the test result through a written statement (e.g., a notation indicating the date and time observed, the observer, and the results), a photograph of the test result, or a video of the test result, if documented and recorded by the employer-observer at the time the test is conducted or observed. This documentation must be preserved by the employer [while the ETS remains in effect].”
Applicable employers have 1 week from the date of this email to: (1) prepare and issue an OSHA ETS Policy and other required educational documents, (2) fully survey the workforce on vaccination status and obtain copies of CDC Vaccination Record Cards from fully vaccinated employees, (3) require unvaccinated employees to wear face coverings throughout the workday (unless eating, drinking, or in a private office with floor to ceiling walls), and (4) implement modified attendance and paid time off policies for employees who get COVID-19 vaccine shots or require recovery from shots on or after 1/10/22, among other requirements. In addition, employers need to prepare for the weekly testing requirement beginning in February 2022.
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