Perhaps it was the Philadelphia Eagles 34-10 thrashing of the New York Giants yesterday, or maybe it’s just my love for employment law blogging — nah, probably the former — that has energized me to add a post today during the final week of 2021.
I was on OSHA’s website checking out its list of Frequently Asked Questions for the COVID-19 Vaccination and Testing ETS, and I could have sworn that some items looked different. I wasn’t sure because OSHA doesn’t appear to say when the FAQ was last updated or what might have changed — come on, guys! — so, I ran a redline.
And, yes, things have changed—two big ones. I’ll discuss them briefly below.
OSHA relaxes rules on self-testing for COVID-19
The first thing I noticed were that
my bare arms were looking particularly swole bathed in the moonlight coming through my office window was in Section 6 of the FAQ where OSHA has relaxed its rules on allowing employees to self-test for COVID-19 without an employer or telehealth provider present. Check out 6K and 6J, which state that “OTC tests that feature digital reporting of date and time stamped results are not considered to be “self-read” and therefore do not require observation by the employer or an authorized telehealth proctor to satisfy the standard.” So, antigen tests are no longer the only type of diagnostic test that can be self-administered. Plus, employees can now self-test for COVID-19, provided that the test digitally records the date and time stamp.
There are also some new FAQs at 6Q-6X relating to OTC COVID-19 tests.
OSHA updates the deadlines for compliance
Following OSHA’s big win at the Sixth Circuit, the agency updated Section 12 of its FAQ relating to dates. The old dates for ETS compliance were December 6, 2021 for any requirements of the ETS, with one exception. Employers had until January 4, 2022 to ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly. Those deadlines have been pushed back to January 10, 2022, and February 9, 2022, respectively.
For the Pfizer-BioNTech COVID-19 vaccine, the primary vaccination series takes 21 days to complete. Therefore, employees receiving the Pfizer-BioNTech series must begin their primary vaccination series (i.e., get their first dose) on or before January 19, 2022, and get their second dose 21 days later.
For the Moderna COVID-19 vaccine, the primary vaccination series takes 28 days to complete. Therefore, employees receiving the Moderna series must begin their primary vaccination series (i.e., get their first dose) on or before January 12, 2022, and get their second dose 28 days later.
Of course, these changes — heck, the entire FAQ and ETS — are subject to whatever happens in the coming weeks at the Supreme Court. Briefs are due this week. Oral argument is on January 7, and the Court could rule before January 10.