(OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard Frequently Asked Questions: Paragraph (g) – COVID-19 Testing for Employees Who are Not Fully Vaccinated

6. Paragraph (g) – COVID-19 Testing for Employees Who are Not Fully Vaccinated

6.A. Do unvaccinated employees who work remotely need to submit to weekly COVID-19 testing?

No. The requirements of the standard do not apply to the employees of covered employers who do not report to a workplace where other individuals such as coworkers or customers are present or while working from home. This includes the testing requirements of paragraph (g) of the ETS.

6.B. If an unvaccinated employee only comes into the workplace once a month is that employee required to be tested every seven days?

No. The employee does not need to be tested for COVID-19 on a weekly basis. However, the employer must ensure the employee is tested for COVID-19 within seven days prior to returning to the workplace and provides documentation of that test result to the employer upon return to the workplace. For example, if an unvaccinated office employee has been teleworking for two weeks but must report to the office, where other employees will be present (e.g., coworkers, security officers, mailroom workers), on a specific Monday to copy and fax documents, that employee must receive a COVID-19 test within the seven days prior to the Monday and provide documentation of that test result to the employer upon return to the workplace. The employee’s test must occur within the seven days before the Monday the employee is scheduled to report to the office, but it also must happen early enough to allow time for the results to be received before returning to the workplace.

6.C. Can an unvaccinated employee still come to the workplace if they did not obtain a COVID-19 test but wears a face covering and is isolated while on site?

No. If an employee does not provide the result of a COVID-19 test as required by paragraph (g)(1) of the standard, the employer must keep the employee removed from the workplace until the employee provides a test result. In addition to being tested for COVID-19 on a weekly basis, unvaccinated employees must also wear a face covering at the workplace.

6.D. May pool testing be used to comply with the ETS? What are pooling procedures and how do they satisfy the testing requirements under this standard?

Yes. Pool testing is one form of testing that can satisfy the testing requirements in paragraph (g). Pooling (also referred to as pool testing or pooled testing) means combining the same type of specimen from several people and conducting one antigen laboratory test on the combined pool of specimens to detect SARS-CoV-2 (e.g., four samples may be tested together, using only the resources needed for a single test). According to the CDC, the advantages of pooling include preserving testing resources, reducing the amount of time required to test large numbers of specimens (increasing throughput), and lowering the overall cost of testing.

If pooling procedures are used and a pooled test result comes back negative, then all the specimens can be presumed negative with the single test. In other words, all of the employees who provided specimens for that pool test can be assumed to have a negative test result for SARS-CoV-2 infection. Therefore, documentation of the negative pooled test result would satisfy the paragraph (g)(1) documentation requirement for each employee in the pool and no additional testing is necessary. However, if the pooled test result is positive, immediate additional testing would be necessary to determine which employees are positive and/or negative. Each of the original specimens collected in the pool must be tested individually to determine which specimen(s) is (are) positive. If original specimens from the workers in a pooled test with a positive result are insufficient to be subsequently tested individually, those workers in the positive pool would need to be immediately re-swabbed and tested. The individual employee test results would be necessary to satisfy the employee documentation requirements of paragraph (g)(1). Where pooled testing is used (in accordance with paragraph (g)(1)), CDC and FDA procedures and recommendations for implementing screening pooling tests should be followed. OSHA notes that only some tests are authorized by the FDA for pooled testing, and should be performed per the authorization.

6.E. How do the testing requirements apply to those employees who previously tested positive for COVID-19?

The standard provides that when an employee has received a positive COVID-19 test, or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer must not require that employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis. This provision is specifically intended to prohibit screening testing for 90 days because of the high likelihood of false positive results that do not indicate active infection but are rather a reflection of past infection. However, when the employee returns to work they must continue to wear a face covering in accordance with paragraph (i) of this ETS.

6.F. Do I have to maintain a copy of each COVID-19 test result for each of my unvaccinated employees?

Yes. The employer must maintain a record of each test result required to be provided by each employee pursuant to this ETS or obtained during tests conducted by the employer. These records must be maintained in accordance with 29 CFR 1910.1020 as employee medical records and must not be disclosed except as required by this ETS or other federal law. However, these records are not subject to the retention requirements of 29 CFR 1910.1020(d)(1)(i) (Employee medical records), but must be maintained and preserved while this ETS remains in effect.

6.G. Does the ETS require employers to cover the costs associated with COVID-19 testing?

No. The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. OSHA notes that the ETS also does not prohibit the employer from paying for costs associated with testing required by the ETS. Otherwise, the agency leaves the decision regarding who pays for the testing to the employer.

OSHA expects that some workers and/or their representatives will negotiate the terms of payment. OSHA has also considered that some employers may choose to pay for some or all of the costs of testing as an inducement to keep employees in a tight labor market. 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. It is also possible that some employers may be required to cover the cost of testing for employees pursuant to other laws or regulations. The subject of payment for the costs associated with testing pursuant to other laws or regulations not associated with the OSH Act is beyond OSHA’s authority and jurisdiction.

6.H. If an employee is entitled to a reasonable accommodation due to a disability or sincerely held religious belief that prevents them from being vaccinated, would the employee still need to be tested weekly?

Yes. The ETS requires weekly COVID-19 testing of all un-vaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements. However, if testing for COVID-19 conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation. For more information about evaluating requests for reasonable accommodation, employers can consult the Equal Employment Opportunity Commission’s website: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

6.I. How long does an employee have to submit to weekly COVID-19 testing if they choose not to be vaccinated?

The employer is required to comply with the requirements of the ETS as long as it is in effect. If an employer has unvaccinated workers in the workplace, those employees will be required to have weekly tests until they are fully vaccinated or the ETS is no longer in effect.

6.J. What type of COVID-19 tests are acceptable under the rule?

Under the ETS, a “COVID-19 test” must be a test for SARS-CoV-2 that is:

cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
administered in accordance with the authorized instructions; and
not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.

COVID-19 tests can broadly be divided into two categories, diagnostic tests and antibody tests. Diagnostic tests detect parts of the SARS-CoV-2 virus and can be used to diagnose current infection. On the other hand, antibody tests look for antibodies in the immune system produced in response to SARS-CoV-2, and are not used to diagnose an active COVID-19 infection. Antibody tests do not meet the definition of COVID-19 test for the purposes of this ETS.

Diagnostic tests for current infection fall into two categories: nucleic acid amplification tests (NAATs) and antigen tests. NAATs are a type of molecular test that detect genetic material (nucleic acids); NAATs for COVID-19 identify the ribonucleic acid (RNA) sequences that comprise the genetic material of the virus. Most NAATs need to be processed in a laboratory with variable time to receive results (approximately 1–2 days), but some NAATs are point-of-care tests with results available in about 15–45 minutes.

Antigen tests may also meet the definition of COVID-19 test under this standard. Antigen tests indicate current infection by detecting the presence of a specific viral antigen. Most can be processed at the point of care with results available in about 1530 minutes. Antigen tests generally have similar specificity to, but are less sensitive than, NAATs.

Antigen tests are the only type of diagnostic tests that can be self-administered. To be a valid COVID-19 test under this standard, an antigen test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. If an over-the-counter (OTC) test is being used, it must be used in accordance with the authorized instructions. The employer can validate the test through the use of a proctored test that is supervised by an authorized telehealth provider. Alternatively, the employer could proctor the OTC test itself.

It should be noted that point-of-care (POC) testing must be performed in accordance with the Clinical Laboratory Improvement Amendments of 1988 (CLIA). The FDA has authorized POC tests that can be used at a place of employment when the facility is operating under a CLIA certificate of waiver. A CLIA certificate of waiver can be issued by the Centers for Medicare and Medicaid Services (CMS).

6.K. May a COVID-19 over-the-counter-test from a local pharmacy be used to satisfy the testing requirements under paragraph (g)?

Yes; however, to satisfy the requirements of the standard an over-the-counter (OTC) antigen test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Antigen tests indicate current infection by detecting the presence of a specific viral antigen. Most can be processed at the point of care with results available in about 1530 minutes. OSHA included the requirement for some type of independent confirmation of the test result in order to ensure the integrity of the result. This independent confirmation can be accomplished in multiple ways, including through the involvement of a licensed healthcare provider or a point-of-care test provider. If an OTC test is being used, the employer can validate the test through the use of a proctored test that is supervised by an authorized telehealth provider. Alternatively, the employer could proctor the OTC test itself.

6.L. Would the employer be cited for not getting an employee tested if there is a lack of adequate testing supplies?

OSHA has determined that there are sufficient COVID-19 tests available and adequate laboratory capacity to meet the anticipated increased testing demand related to compliance with the ETS testing requirements. However, in the event that an individual employer is unable to comply with paragraph (g) of this ETS due to inadequate test supply or laboratory capacity, OSHA will look at efforts made by the employer to comply, as well as the pattern and practice of the employer’s testing program, and consider refraining from enforcement where the facts show good faith in attempting to comply with the standard.

6.M. What is CLIA and do I need a CLIA certification?

COVID-19 tests that are cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the FDA to detect current infection with the SARS-CoV-2 virus (e.g., a viral test) are permitted under the ETS when used as authorized by the FDA and with a Clinical Laboratory Improvement Amendments of 1988 (CLIA) certification when appropriate. The FDA has authorized point-of-care tests that can be used at a place of employment when the facility is operating under a CLIA certificate of waiver. A CLIA certificate of waiver can be issued by the Centers for Medicare and Medicaid Services (CMS). However, a CLIA certificate of waiver is not required for over-the-counter employee self-tests that are observed by employers.

6.N. How will the Administration ensure the availability of adequate testing capacity to satisfy the potential increase in demand the ETS may create?

The ETS encourages vaccination, and most employers can comply with the ETS by requiring their employees to become fully vaccinated, which will avoid any increased need for testing. But even if most employers were to forgo that option, and most of their employees were to choose not to be vaccinated, there would still be adequate testing capacity. OSHA thoroughly reviewed current and future projections of the availability of COVID-19 tests, testing supplies, and laboratory capacity. Following that review, OSHA determined that there is sufficient testing capacity to meet the anticipated increased testing demand related to compliance with the ETS testing option and found that the standard is technologically feasible. For more information about OSHA’s feasibility analysis, see the detailed discussion in Technological Feasibility (Section IV.A. of the ETS preamble).

6.O. Will OSHA recognize good faith efforts in attempting to comply with the standard for testing delays beyond the employee’s or employer’s control?

Yes. Because antigen testing in point-of-care locations will typically produce results within minutes, the use of antigen testing should not result in an inability to provide the employer with test results in a timely fashion. However, the agency recognizes that where the employee or employer uses an off-site laboratory for testing, there may be delays beyond the employee’s or employer’s control. In the event that there is a delay in the laboratory reporting results and the employer permits the employee to continue working, OSHA will look at the pattern and practice of the individual employee or the employer’s testing verification process and consider refraining from enforcement where the facts show good faith in attempting to comply with the standard.

6.P. Do employees who have received one dose of a two-dose sequence have to test weekly? Will employees who have received a second dose but are not yet two weeks past that second dose need to test weekly?

Employers must ensure that each employee who is not “fully vaccinated” complies with the testing requirements in paragraph (g)(1) of this ETS, including weekly testing for employees who report at least once every 7 days to a workplace where other individuals such as coworkers or customers are present. In the case of a two-dose primary vaccination series (e.g., Pfizer-BioNTech and Moderna), an employee is not considered “fully vaccinated” until 2 weeks after receiving the second dose of the series. Therefore, employers would need to ensure employees continue to test weekly until 2 weeks after receiving their second dose. However, employers have until 60 days after publication in the Federal Register to comply with the testing requirement in paragraph (g), and employees who have completed the entire primary vaccination by that date do not have to be tested, even if they have not yet completed the 2-week waiting period.

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