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OSHA’s dos and don’ts for mandatory COVID-19 testing of unvaccinated employees

published in McAfee & Taft EmployerLINC | December 28, 2021

Beginning February 9, 2022, large employers will have to implement the COVID-19 testing requirements of the OSHA ETS. If employers implement a vax-or-test policy, they must comply with the weekly testing requirements and implement a weekly COVID-19 testing program for unvaccinated workers. If employers choose a mandatory vaccination policy, employers would still have to implement the testing requirements for those employees who are not fully vaccinated because of an exemption or accommodation. Failure to comply could subject employers to potentially significant fines.

To assist covered employers in complying with its emergency temporary standard (ETS), the Occupational Safety and Health Administration has published a series of FAQs on its website that provide specific instructions on implementing and maintaining a legally compliant testing program. The full list of COVID-19 Vaccination and Testing ETS FAQs can be found here (the guidance specific to testing employees who are not fully vaccinated is in Section 6).

Self-administered + self-read = noncompliant; digitally-read tests and Zoom testing permitted

Ensuring the integrity of test results is paramount to compliance, which is the reason why OSHA included a requirement for some type of independent confirmation. Notably, in order for a COVID-19 test to be valid under the ETS, a test may not be both self-administered and self-read unless the entire process is observed either by the employer or an authorized telehealth proctor.

Understanding that conducting an in-person proctored test may not always be feasible logistically, the OSHA guidelines do allow for digitally-read tests – that is, those that produce a date and time-stamped result that employers can access via an app, QR code or RFID – as those are not considered “self-read.” Because these digitally-read tests would not be considered “self-read” under the ETS, they would not require observation by an employer or authorized telehealth proctor in order to meet the requirements of the ETS. Each digitally-read test would have to be used in accordance with its instructions, and only used once.

Employers have wondered whether an employee may submit a photograph of their test result to the employer after the employee self-administered the test. The answer is no. The guidelines specifically state that photographs of test results are not a substitute for observation by the employer or an authorized telehealth proctor.

Additionally, OSHA has clarified that the ETS permits employers or their authorized telehealth providers to observe the self-administration of over-the-counter tests via live-streaming video software such as Zoom, Skype or Microsoft Teams.

Additional testing FAQs

As it specifically pertains to testing protocols, the ETS offers the following additional guidance:

  • Observation of COVID-19 tests by an employer or authorized telehealth proctor must be made in real-time to ensure the integrity of the results. No retroactive review of videos recorded by employees is permitted.
  • Employers or authorized telehealth proctors may observe more than one OTC COVID-19 test at the same time, provided they are able to validate the results with confidence.
  • Employers that observe or conduct OTC COVID-19 tests are required to preserve a record of each test result. Acceptable forms of documentation include written statements, photos, or videos and must include the name of the observer, the date and time of the test, and the test result. OSHA has clearly stated that an employer that fails to document the result after observing the test, or that obtains an employee’s test result information verbally and makes no record of the test, would not satisfy the record maintenance requirements of the standard.
  • For employers that have employees who do not report to a workplace or see a supervisor on a regular basis, the ETS permits compliance through various FDA-authorized tests that provide independent confirmation of the results.

Unless the U.S. Supreme Court intervenes to further delay the federal vax-or-test mandate, employers should prepare to have their testing programs in place and ready to go no later than February 9, 2022.