The ETS explicitly states that employers are not obligated to bear the cost of testing, but notes that testing may be required by other laws, regulations, or collective bargaining duties. OSHA officials have also stated that they will work with employers in the event of a test shortage, although it is unclear how any claims regarding the unavailability of tests should be managed. The ETS is silent on who pays for testing where the employee is unvaccinated because of a medical or religious reason.
Face Coverings
Workers who are not fully vaccinated are required to wear a compliant face covering effective December 5, 2021, unless:
• outdoors;
• alone in an enclosed room with floor to ceiling walls and a closed door;
• briefly, while eating or drinking;
• while wearing a respirator or facemask; or
• when wearing such covering would create a greater hazard that that mitigated by the covering.
However, employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless the employer can demonstrate that doing so would create a hazard.
Rules When an Employee Tests Positive
All covered employers must require their employees to promptly disclose when they have received a COVID-19 positive test result or a diagnosis of COVID-19 by a licensed health care provider. Employees with a positive COVID-19 test or diagnosis may not be permitted to return to workplace before one of the following conditions is met:
• A negative result for a confirmatory COVID-19 test after a positive rapid test result is obtained;
• Return to work criteria in the Centers for Disease Control and Prevention’s (CDC’s) Isolation Guidance (i.e., 10 days/fever free for 24 hours/symptoms improved) is met; or
• A licensed health care provider recommends that the employee may return to work.
The ETS does not explicitly require employers to provide paid leave in the event of a positive COVID test, but other laws, employer policies or collectively bargained agreements may obligate employers to do so. After returning to work following a positive COVID-19 test or being diagnosed with COVID-19 by a licensed health care provider, employers may not require that such employee undergo testing for 90 days following the date of their positive test or diagnosis.
Employer Communication to Employees
Employers are required to provide information regarding their policies and procedures established to implement the ETS, in a language and at a literacy level the employee understands, regarding the employer’s vaccination policy(-ies) (see section above about what must be included in such a policy). Employers also have to provide a notice regarding the safety and efficacy of COVID-19 vaccines from the CDC, and information about OSHA’s non-retaliation rules and the penalties for not complying. An employer may provide this information to employees through email communications, printed fact sheets, or during a discussion at a regularly scheduled team meeting. There are no formal training requirements. The ETS does not specify the frequency with which employers must provide this information to employees. However, if an employer modifies its policies or procedures, it must provide any updated or supplemental information to employees. This information should also be provided to new hires.