While the U.S. Supreme Court continues to deliberate over whether the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) is a valid exercise of OSHA’s regulatory authority, OSHA has continued to update their ETS FAQs to provide more guidance to employers. 

In particular, OSHA has clarified the requirements that apply to the use of over-the-counter COVID-19 tests (OTC Tests) for compliance with the testing requirements of the ETS. 

OTC Tests can be used to comply with the every-seven-day testing requirement for unvaccinated employees, provided that the OTC Test is “proctored” by the employer or a medical provider. An OTC is “proctored” if the administration and reading of the test is observed by the employer or medical provider. OSHA has explained that it “included the requirement for some type of independent confirmation of the test result in order to ensure the integrity of the result.”

In the recent update to the ETS FAQs, OSHA has clarified that an employer can “proctor” an OTS Test by:

  • Observing more than one test at time, provided that employers do not “observe more OTC tests at a time than they are able to validate with confidence,” and
  • Proctoring the test remotely, i.e., via a livestreaming video conference.

Accordingly, for remote employees, employers will have the option to proctor their OTC Tests using live video conferences and with multiple employees at the same time, which may lessen the administrative burden. 

OSHA’s update to their FAQs also explains that employers can document their proctoring through the use of written statements by the observer that includes the date and time observed, the observer, and the result of the test:

FAQ 6.W: For results obtained during tests observed or conducted by the employer, OSHA will accept various forms of documentation to meet the requirements of 1910.501(g)(4). Employer-observers may document the test result through a written statement (e.g., a notation indicating the date and time observed, the observer, and the results), a photograph of the test result, or a video of the test result, if documented and recorded by the employer-observer at the time the test is conducted or observed. This documentation must be preserved by the employer. An employer that merely 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. Similarly, the record maintenance requirements cannot be fulfilled if an employee merely shows the employer their documentation of the test result or the employer simply observes the test result (e.g., by seeing the employee’s test results after observing the test in person without any documentation). Rather, the employer must make a record of the test result to satisfy (g)(4).

In addition to clarifying the requirements for proctoring an OTC Test, the recent update to the OSHA FAQs also contained the following new guidance:

  • Employee-provided photographs of OTC test results are not sufficient to comply with the testing requirements if the test was self-read and self-administered by the employee. 
  • OTC tests that feature digital reporting of date and time stamped results (e.g., results available through an app, QR code, RFID) are sufficient to comply with the testing requirements.
  • A single OTC test satisfies the testing requirements, even those the FDA’s emergency use authorization for OTC tests requires completion of more than one test. 
  • Retroactive reviews of videos of employees taking OTC Tests are not acceptable. Observation of an OTC Test by an employer must be to be done in real time to meet the requirements of the ETS.

As of Jan. 11, the U.S. Supreme Court has not issued a decision on the challenge to the ETS or stayed OSHA’s enforcement of the ETS. Accordingly, employers who are subject to the ETS should consider OSHA’s pronouncement that it will begin enforcing the non-testing requirements of the ETS on Jan. 10 and the testing requirements on Feb. 9. 

However, those employees that are located in states with a state OSHA plan may not be currently subject to the ETS, or may be subject to a standard with different requirements, based on that state’s approach to the ETS and its obligation to adopt a standard that is at least as protective as the ETS.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.

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