OSHA Vaccine ETS Questions and Answers

The U.S. Department of Labor’s Occupational Safety and Health Administration has released answers to a number of frequently asked questions about the agency’s COVID-19 Vaccination and Testing Emergency Temporary Standard. 

Here’s a sampling of those questions and responses. 

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Q: Am I permitted to implement a partial mandatory vaccination policy that requires vaccination for employees that provide services directly to members of the public, but allows other employees the choice of vaccination or testing?

A: Yes. OSHA recognizes there may be employers who develop and implement partial mandatory vaccination policies (i.e., that apply to only a portion of their workforce). 

An example might be a retail corporation employer who has a mixture of staff working at the corporate headquarters, performing intermittent telework from home, and working in stores serving customers. 

In this type of situation, the employer may choose to require vaccination of only some subset of its employees (e.g., those working in stores), and to treat vaccination as optional for others (e.g.,those who work from headquarters or who perform intermittent telework). 

This approach would comply with the standard so long as the employer complies in full with paragraphs (d)(1) and (d)(2) for the respective groups. 

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Q: My company has already developed and implemented a vaccination policy before this standard was published. Am I already in compliance or do I need to create a new written policy?

A: It is not OSHA’s intent for employers to duplicate current effective policies covering the requirements of this ETS; however, each employer with a current policy must evaluate that policy to ensure it satisfies all of the requirements of this rule.

Employers with existing policies must modify and/or update their current policies to incorporate any missing required elements, and must provide information on these new updates or modifications to all employees in accordance with paragraph (j)(1).

Once the employer has developed its policy pursuant to paragraph (d), the policy must be reduced to writing in order to be compliant with paragraph (d).

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Q: If an employee has previously had COVID-19, but has not been vaccinated, can they be classified as fully vaccinated under the policy assuming they have antibodies? Are there any exceptions in the standard for employees who have natural immunity through previous COVID-19 infection?

A: No, the ETS does not offer any exemptions to vaccination requirements based on “natural immunity” or the presence of antibodies from a previous infection. 

“Fully vaccinated” means a person’s status two weeks after completing primary vaccination with a COVID-19 vaccine with, if applicable, at least the minimum recommended interval between doses in accordance with the approval, authorization, or listing that is: (i) approved or authorized for emergency use by the FDA; (ii) listed for emergency use by the World Health Organization (WHO); or (iii) administered as part of a clinical trial at a U.S. site, if the recipient is documented to have primary vaccination with the active (not placebo) COVID-19 vaccine candidate, for which vaccine efficacy has been independently confirmed (e.g., by a data and safety monitoring board) or if the clinical trial participant at U.S. sites had received a COVID-19 vaccine that is neither approved nor authorized for use by FDA but is listed for emergency use by WHO. 

For “mix-and-match” vaccinations, any combination of two doses of a COVID-19 vaccine that is approved or authorized by the FDA, or listed as a two-dose series by WHO (i.e., a heterologous primary series of such vaccines, receiving doses of different COVID-19 vaccines as part of one primary series), is also acceptable.

 An employee who does not meet this definition is not considered fully vaccinated, regardless if they have previously tested positive for COVID-19.

Therefore, that employee must be treated as unvaccinated and either receive a vaccination or undergo weekly COVID-19 testing and wear a face covering in the workplace.

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For more information, contact CBIA’s Phillip Montgomery (860.244.1982).