A response to the OSHA: COVID-19 Vaccination and Testing; Emergency Temporary Standard

by Jorge del Prado

On Friday November 5, the OSHA (Occupational and Safety Health Administration) published in the Federal Registry of the USA the already known and expected Vaccination and Testing Emergency Temporary Standard (ETS) to tackle Covid surge in work places in the United States.

https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard

The ETS’s main objective is to reduce the risk of unvaccinated people becoming infected by COVID-19 in workplaces by strongly encouraging vaccination.

According to the document's projections the total estimated cost to the 263,879 affected companies will be in the region of $3bn!  With an average cost of $11,298 per business.

The policy must be implemented by January 4 of 2022, giving companies approximately 7 weeks to implement these new measures.  However, with the Holiday Season in the middle, is this a mission impossible?

That all depends on how this issue is approached:

Who is affected?

  • Any company with more than 100 employees (If you have a mix of full time and part time employees you will need to follow specific guidelines to determine if your company is affected).

What do you have to do?

  • Determine your employees vaccination status. Before January 4 companies must classify their employees as either vaccinated or non vaccinated. Employees that are unable to prove they’re vaccinated are considered unvaccinated. Employees can prove their vaccination status using several agreed means or they can provide a self declaration form which is legally binding and could lead to criminal prosecution if they have falsified their vaccination status.
  • Enforce COVID-19 Testing for employees who are Not Fully Vaccinated. If an employee is unable to prove their vaccination status, they will be required to provide a negative Covvid test result to the company on a weekly basis. Tests accepted are from several types and the cost of the test is assumed by the employee unless the company voluntarily assumes these costs. (‘Other employers may choose to put the full cost of testing on employees in recognition of the employee’s decision not to become fully vaccinated’ - page 407). In addition, unvaccinated employees will be mandated to wear masks when they are working onsite.
  • Receive notification from your employees  of a positive COVID-19 test and isolation. Employees are required to report a positive test to their employer as soon as they are aware of it and isolate themselves from the workplace accordingly. Further guidelines are provided for employees to return to work following the isolation period.
  • Report COVID-19 fatalities and hospitalizations to OSHA. 
  • Administer recordkeeping. Employers must keep track of both employee vaccination status and test results. These records are considered to be employee medical records and must be maintained in accordance with 29 CFR 1910.1020. Records must be treated as private and confidential and presented as required by the ETS or other federal agencies.

Summary:

  • Each company must create a repository of employees storing their vaccination status and test results.
  • The employer is responsible for tracking that employees are vaccinated or possess a negative test result.  The employee is liable for the authenticity of the vaccine certification/test results.
  • Employees who are not vaccinated are required to get a valid Covid-19 test each week at their own cost (it is not mandatory that the company covers these costs). 
  • When the ETS requests the list of employee Covid statuses, the company or work-center must provide it by the next working day.
  • The process must be implemented by the January 4, 2022
  • Companies are entitled to gather vaccination information from employees before that date. That means the process of gathering information can start immediately, and not have to wait until January 4.

How can you do it?

Step 1. Create a policy

HR departments should already be working on policies to define how they are going to implement this new legislation.

Step 2. Choose a tool/system to implement, manage and audit.

There are several ways companies can implement these new requirements either manually or in a fully automated manner.

  1. Manually by using spreadsheets to store the records and then contacting employees individually by email or text to gather proof of vaccination and weekly test results. This solution would be resource heavy, requiring substantial human effort and time depending on the size of the organization and is more susceptible to human errors. The result of a bad implementation could be a fine or even having the workplace temporarily closed.
  2. Adding a new policy to existing HR tools. This would be ideal but configuring and modifying existing tools always requires time and testing and 7 weeks is a very aggressive timescale to have confidence in such an important system.
  3. Using semi automated tools. Gathering and verifying vaccination status could be a simpler semi-automated process. Many Americans already have Smart Health Cards as proof of vaccination and Smart Health Cards can be also used to store test results. Verification of Smart Health Cards can be automated digitally so that a system may verify status and provide the outcome automatically to the company to be stored without any human interaction. Companies could still make daily, weekly or monthly audits of the data to detect gaps, however the benefit here is that these would be by exception rather than manually for each record. A digital proof could be also issued to the employee to demonstrate outside of the workplace that they have vaccination proof or current test status.


Step 3. Launch and application

One of the most difficult steps is internal compliance - Launching the programme; Ensuring employees are aware of the program and how they should follow it. Our advice is to promote an internal company driven policy. Initiating the process from the company and not expecting the employee to voluntarily initiate it themselves. An invitation to every employee to verify their vaccination status should be sent by the company, who then need effective tools to monitor and track the responses.

Step 4. Ongoing operation

The tools used should allow the company to track activity in real time and extract records for the ETS when needed. The systems and processes need to be robust in the event of a positive case. The optimum solution is to provide a digital ‘mobile’ record to employees that contains their vaccination status or test results in a standard format that every employee, manager or health and safety official can easily recognise.

Folio has been dealing with the pandemic since March 2020, we are able to issue and verify test results and vaccination status automatically. We can also verify email or full identity of the employee remotely and issue a permanent or temporary employee credential that can be verified in the physical environment to make sure there is no unauthorized access to the workspace.

Don’t hesitate to ask me if you need any help facing this new mission impossible jorge.delprado@folio.id


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