What You Need to Know, OSHA Vaccine Requirement

The Federal Occupational Safety and Health Administration (OSHA) has released its Emergency Temporary Standards (ETS) relating to COVID-19 and employers of more than 100 workers. Minnesota operates its own OSHA standards and will have 30 days to release its own version that includes all provisions from the Federal ETS. Because of this, Minnesota's ETS will apply to all public employees. For South Dakota, this will only apply to private employers.

The ETS requires that employers implement and enforce their policies no later than January 4th of 2022. However, the ETS is currently being stayed by the US Fifth Circuit Court of Appeals.  This means some or all of this standard may be changed or struck down. However, we encourage all workers to ask their employer about their plans. 

Employers Policy:

Employers of more than 100 workers must establish, implement, and enforce a mandatory vaccination policy that:

  • Requires all existing and new employees to be fully vaccinated, other than employees with certain medical contraindications, or sincerely held belief.*
  • Employers policies may be stricter than the ETS requires. 
  • Employers may impliment and enforce a policy that allows workers to choose between vaccinatiopn or providing proof of regular testing with masking. 
  • Employers are required to determine the vaccination status of each employee covered by the policy. 
  • Any worker who fails to provide proof of vaccination must be treated as being unvaccinated.
  • Employers are required to preserve acceptable proof of vaccination and a roster of each employees vaccination status, which will be considered as employee medical records while this ETS is in effect.,
  • Acceptable proof of Vaccinations can be: Official Record of Immunization from a healthcare provider or pharmacy; Copy of COVID-19 Vaccination record card; Copy of medical records documenting vaccination; Copy of Immunization records from government entity; Signed and dated testiment of vaccination only when employee has lost or is otherise unable to produce other proof of vaccination.**

Frequently Asked Questions:

1. Can employers require workers to get a vaccine?

Answer: Yes, once the OSHA Emergency Temporary Standards are in place, all private employers with more than 100 employees will have to impliment a vaccine requirement for workers. Public employers in Minnesota will also be required to impliment the same requirements. South Dakota Public Employers will not have to impliment a vaccine requirement.

2. Does my employer have to make accomodations if I have a religious objection or a medical condition that prevents me from being vaccinated?

Answer: Maybe.  Employers have to make reasonable accomodations for those exempt from the requirements, however if no accomodation is possible then the result could be unpaid leave or termination. 

3. I do not work in an office setting, am I still required to be vaccinated?

Answer: It depends.  A worker who works from home, or works exclusively outdoors, can be exempt from vaccine requirements. However if at any time an employee must report to a shared worksite, then they must be included. Once again employers policies can be stricter than the OSHA ETS requirements

4. Does my employer have to provide me paid time off to get vaccinated?

Answer: Yes, employers covered by the ETS have to provide workers up to 4 hours paid leave for all required vaccine appointments, including travel time. 

5. Does my employer have to provide me paid time off for adverse reactions to the vaccine?

Answer: Yes. Employers covered by the ETS must provide a reasonable amount of paid sick leave to recover from any side effects experienced following each primary vaccination series. This could be accrewed sick leave if available, but if a worker is out of accrewed leave they still must receive reasonable sick leave. 

6. If my employer allows frequent testing instead of vaccination, how often must I get tested?

Answer: If your employer chooses to allow vaccination or frequent testing with masking. Workers who opt for testing must provide test results at least once every 7 days.
If you do not report to a workplace where coworkers or customers are present for a period of more than 7 days, you must be tested within 7 days prior to returning to such a workplace.

7. I've recently tested positive for COVID-19, do I still have to get vaccinated or get frequent tests?

Answer: Employers are prohibited from requiring regular COVID-19 testing of employees who are not fully vaccinated for 90 days after a positive COVID-19 test or diagnosis. This is due to the high  likelihood of fale positives immediately post infection. A previous diagnosis of COVID-19 does not exempt someone from the vaccine or testing requirement except for the period of time mentioned above. 

8. Does my employer have to cover the costs of COVID-19 tests if I choose not to get a vaccine?

Answer: No, if your employers offers a testing and mask option, they are not required by the ETS to pay for testing. Other laws or negotiated agreements could require they provide testing. 

9. What happens if I test positive for COVID-19?

Answer: Employees must immediately notify their employer of a positive test or diagnosis. The employee must be immediately removed from the work place.

10. When can I return to work after a positive COVID-19 Test or Diagnosis?

Answer: An employee who has tested positive or been diagnosed with COVID-19 can return to work after recieving a negative result on an accepted COVID-19 test, when "CDC isolatiuon guidence" is met, when recommended by a licensed healthcare provider. Employers are not required by the ETS to provide paid leave for workers who tested positive, though contracts or other statutes/rules may require paid leave. 

11. Can my employer require me to wear a mask at work? 

Answer: Employees who are not fully vaccinated must wear face coverings when indoors and in vehicles except when completely alone, eating, drinking, or when it is unsafe to do so. 

Other Relevant information: 

  • Employees can report workplaces not in complience with the ETS requirements at https://www.osha.gov/workers/file-complaint. If a worker is uncomfortable they can reach out to their staff representative for assistance. 
  • Any employee or employee representative can request  the aggregate number of fully vaccinated employees at a workplace and the total number of employees at that workplace. 

All this information and more can be found at: www.osha.gov/coronavirus 

* Employers do not necessarily have to provide exemptions for all workers who claim religious exemptions or medical exemptions. They can require certain forms of evidence, and if no reasonable accomadations are available, the workers may face unpaid leave or termination. 

** Employers may chose not to accept some forms of proof of vaccination.