OSHA’s COVID-19 Vaccine and Testing ETS: Spotlight on Testing
Senior Compliance Attorney
OSHA published its COVID-19 Vaccine and Testing Emergency Temporary Standard (ETS) for 100+ employers on November 5th, 2021. After an initial stay of enforcement was issued in November, the stay was lifted by a three judge panel of the 6th Circuit US Court of Appeals on December 17th, 2021. Original compliance dates have been revised to January 10, 2022 for most requirements and February 9, 2022 for testing requirements.
Testing ETS requirement
Under the ETS, employers may choose to make the COVID-19 vaccination mandatory or allow unvaccinated employees to test for COVID-19 and mask while at work. Testing is required at least once every 7 days, or within 7 days before returning to work if away from the workplace for 1 week or more. Unvaccinated employees must provide documentation of the most recent COVID-19 test result to the employer no later than the 7th day following the date on which the employee last provided a test result.
Employers are not required to pay for any costs associated with testing, however employer payment for testing may be required by state law or collective bargaining agreements.
Testing documentation requirements
If an employee does not provide documentation of a COVID-19 test result, the employer must keep that employee removed from the workplace until the employee provides a test result. If an employee is unable to produce a test result due to testing supply shortages or laboratory capacity, it may be appropriate for that employee to return to work while trying to obtain a test. The employer is recommended to document such efforts to comply.
OSHA has stated they will look at efforts made by the employer to comply, as well as the pattern and practice of the employer’s testing program, and consider refraining from enforcement where the facts show good faith in attempting to comply with the standard.
Note: If an employee tests positive or is diagnosed with COVID-19, they do not need to undergo testing for 90 days. 100% remote or outdoor employees are not subject to weekly testing criteria.
The employer must maintain a record of each test result provided by each employee. Employee test results are considered medical records and are to be maintained in each employee’s confidential medical file. These records must be maintained and preserved while the ETS remains in effect.
If any employee tests positive or is diagnosed with COVID-19, the employer must require each employee to promptly notify the employer and be immediately removed from the workplace until:
- The employee receives a negative test result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing or;
- Meets the return to work criteria in CDC’s “Isolation Guidance” or:
- Receives a recommendation to return to work from a licensed healthcare provider.
Note: Employers are not required to provide paid time to any employee for removal as a result of a positive COVID-19 test or diagnosis of COVID-19. However, paid time may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
Acceptable COVID-19 tests
The OSHA ETS FAQs clarify what type of COVID-19 tests are acceptable. COVID-19 tests must be:
- 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 (e.g., a viral test);
- administered in accordance with the authorized instructions; and
- not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
Acceptable tests are either nucleic acid amplification tests (NAATs) or antigen tests. Antibody tests are not acceptable. Examples of tests that satisfy this requirement include:
- tests that are processed by a laboratory
- proctored or digitally read over-the-counter (OTC) tests
- point of care tests (employer must obtain CLIA waiver to utilize)
- tests where specimen collection and processing is either done or observed by an employer
It is important to note that a test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Photographs of test results are not a substitute for observation by the employer or an authorized telehealth proctor. If an OTC test is being used, it must be used in accordance with the authorized instructions. The FAQs clarify, however, that although many OTC COVID-19 tests are sold with two tests meant to be taken within a few days of each other, the ETS only requires one test every 7 days.
OTC tests that feature digital reporting of date and time stamped results are not considered to be “self-read” and therefore do not require observation by the employer or an authorized telehealth proctor to satisfy the standard.
The FAQs additionally clarify the following:
- Employers can observe more than one OTC COVID-19 test at the same time, but not more than they are able to validate with confidence.
- Employers may remotely observe the self-administration of OTC tests via live streaming methods (Zoom, Skype, Microsoft Teams, etc.).
Employer observed testing documentation
OSHA will accept various forms of documentation to meet the requirements of the ETS for test results observed or conducted by the employer. Employer-observers may document test results 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 maintained by the employer. Test results relayed verbally without further documentation will not satisfy the record maintenance requirements of the standard. In addition, the requirements are not met if the employee shows the employer the result or the employer observes the test result without any further documentation.
Employers that decide to allowing testing and masking under the OSHA ETS for 100+ employers should review these testing requirements and understand the acceptable testing methods as they continue their compliance efforts with the ETS.