School face covering policies for students, staff members, faculty,
and visitors are associated with a reduction in COVID-19 outbreaks.
Between July 15 and August 31, 2021, schools in Arizona were analyzed
for school mask policies, which provided that all persons, regardless
of vaccination status, were required to wear a mask indoors. The odds
of a school-associated COVID-19 outbreak in schools without a mask
requirement were 3.5 times higher than those in schools with an early
mask requirement (Odds Ratio = 3.5; 95% Confidence Interval = 1.8-6.9)
(Jehn et al., October 1, 2021).
    The effectiveness of face coverings in limiting the emission and
spread of droplets has also been demonstrated in numerous studies. For
example, multiple studies in which droplets were visualized while
individuals were talking or a manikin was used to simulate coughs and
sneezes demonstrated that two-layer face coverings limited the number
of droplets released into the air, and limited the forward spread of
those not captured (Fischer et al., September 2, 2020; Verma et al.,
June 30, 2020; CDC, May 7, 2021).
    The effectiveness of face coverings in preventing infections was
also observed in a number of epidemiological studies. For example, in
June of 2020 an outbreak was studied aboard the USS Theodore Roosevelt,
an environment notable for congregate living quarters, close working
environments, and a sample of mostly young, healthy adults. The
investigation found that use of face

coverings on board was associated with a 70% reduced risk of
transmission, which demonstrates that the use of face coverings,
especially among asymptomatic cases, can help mitigate future
transmission (Payne et al., June 12, 2020). Another publication,
released in July of 2020, included an investigation of a high-exposure
event among 139 clients exposed to two symptomatic hair stylists with
confirmed cases of COVID-19. Both of the stylists and all of their
clients wore face coverings during their interactions. Among 67 clients
subsequently tested for COVID-19, all test results were negative; no
symptomatic secondary cases were reported by any clients, including
those who were not tested. The study concluded that the strict use of
face coverings likely mitigated the spread of COVID-19 (Hendrix et al.,
July 17, 2020).
    Several other observational epidemiological studies have reviewed
data regarding the ``real-world'' effectiveness of face covering usage.
First, in a study of 124 Beijing households with one or more
laboratory-confirmed case of COVID-19, face covering use by both the
index patient and all family contacts before the index patient
developed symptoms reduced secondary transmission (i.e., infections
occurring within two weeks of symptom onset in the index case) within
the households by 79% (Wang et al., May 11, 2020). Second, a
retrospective case-control study from Thailand documented that, among
more than 1,000 persons interviewed as part of contact tracing
investigations, those who reported having always worn a face covering
during high-risk exposures experienced a greater than 70% reduced risk
of infection compared with persons who did not wear face coverings
under these circumstances. The risk for infection was not significantly
lower in those who reported only sometimes wearing face coverings
compared to those who did not wear face coverings at all. This evidence
supports the conclusion that face coverings must be worn consistently
and correctly to meaningfully reduce the risk of infection (Doung-ngern
et al., September 14, 2020).
    Community-level analyses have also confirmed the benefit of
universal face covering use in: A unified hospital system (Wang et al.,
July 14, 2020); a German city (Mitze et al., June 1, 2020); a U.S.
state (Gallaway et al., October 6, 2020); a panel of 15 U.S. states and
Washington, DC (Lyu and Wehby, June 16, 2020; Hatzius et al., June 29,
2020); as well as both Canada (Karaivanov et al., October 1, 2020) and
the U.S. (Chernozhukov et al., September 15, 2020) nationally. Each
community analysis demonstrated that, following universal face covering
directives from both organizational and political leadership, new
infections were shown to fall significantly. These analyses have also
shown reductions in mortality and the need for lockdowns, with their
associated monetary/gross domestic product losses (Leffler et al.,
December 2, 2020; Hatzius et al., June 29, 2020). Additionally,
multiple investigations involving infected passengers aboard flights
longer than ten hours strongly suggest that face covering usage
prevented in-flight transmissions, as demonstrated by the absence of
infection developing in other passengers and crew in the 14 days
following exposure (Schwartz et al., April 14, 2020; Freedman and
Wilder-Smith, September 25, 2020).
    Researchers from the COVID-19 Systematic Urgent Review Group Effort
investigated the effects of face coverings and eye protection on virus
transmission in both healthcare and non-healthcare settings. They
identified 172 observational studies for their systematic review and 44
comparative studies for their meta-analysis, including data on 25,697
COVID-19, SARS, or MERS patients. They concluded for the general
public, based mainly on evidence from face covering use within
households and among contacts of cases, that disposable surgical masks
or face coverings (reusable multi-layer cotton face coverings) are
associated with protection from viral transmission. Through the meta-
analysis, combining 39 of the studies' results, they found a 14.3%
reduction in the difference of anticipated absolute effect (e.g., the
chance of viral infection or transmission) between no face covering and
face covering groups (Chu et al., June 27, 2020).
    Ueki et al. (June 25, 2020) evaluated the effectiveness of cotton
face coverings, facemasks, and N95s (a commonly used respirator) in
preventing transmission of SARS-CoV-2 using a laboratory experimental
setting with manikins. The researchers found that all offerings
provided some measure of protection as source control, limiting
droplets expelled from both infected and uninfected wearers. For
instance, when spaced roughly 20 inches apart, an uninfected person can
reduce inhalation of infectious virus by 37% by wearing a cotton face
covering. If only the infected person wears a cotton face covering, the
amount breathed in by the uninfected recipient is reduced by 57%.
However, if both individuals wear a cotton face covering, the exposure
is reduced 67%. If both are wearing facemasks, exposure is reduced by
76%. When an infected individual wore an N95 respirator, exposure was
reduced by 96% or, when the seams were taped, 99.7%.
    As demonstrated by the studies above, proper face covering usage
leads to a substantial reduction in the emission of virus-containing
droplets and consequent transmission of the virus. This is especially
critical for asymptomatic or pre-symptomatic infected wearers who feel
well and may not be taking other preventative measures--like self-
isolation--because they are unaware of their infectiousness to others.
Combined, these individuals are estimated to account for more than 50%
of COVID-19 transmissions (Honein et al., December 11, 2020; Moghadas
et al., July 6, 2020; Johansson et al., January 7, 2021). This figure
could be substantially reduced if face coverings are required, even for
individuals who do not feel sick. Face covering use is also especially
important in indoor spaces (Honein et al., December 11, 2020). The
studies reviewed above show that face coverings reduce the release of
droplets but do not completely eliminate them. CDC guidance affirms
that COVID-19 pandemic control requires face covering use (Honein et
al., December 11, 2020; CDC, May 7, 2021). Similarly, the WHO advises
face covering use as a critical measure of a comprehensive package of
prevention and control measures to limit the spread of COVID-19 (WHO,
December 1, 2020).
    Although increasing COVID-19 vaccination coverage remains the most
effective means to achieve control of the pandemic, additional layered
prevention strategies will be needed in the short term to minimize
preventable morbidity and mortality among unvaccinated individuals.
Unvaccinated individuals remain at substantial risk for infection,
severe illness, and death, especially in areas where the level of SARS-
CoV-2 community transmission is high (discussed in detail in Grave
Danger (Section III.A. of this preamble)). Among strategies to prevent
COVID-19, CDC recommends all unvaccinated individuals wear face
coverings in public indoor settings. A proven effective strategy
against SARS-CoV-2 transmission, beyond vaccination, includes using
face coverings consistently and correctly (Christie et al., July 30,
2021).
    The agency is not requiring the use of face coverings by workers
who are fully vaccinated because vaccination is sufficient to reduce
the grave danger to

themselves or others. While vaccination is sufficient to reduce grave
danger to the workers themselves, the agency recognizes that there may
still be residual risk (e.g., breakthrough infections); severe health
outcomes among vaccinated workers, however, are unlikely. Vaccination
is also sufficient to reduce the grave danger that fully vaccinated
workers present to others given the reduced likelihood of transmission
(see Grave Danger in Section III.A. of this preamble). Nonetheless, the
use of face coverings by fully vaccinated workers, while not required
by this ETS, is strongly encouraged in a wide range of circumstances to
reduce the overall risk of transmitting COVID-19, particularly in areas
of substantial or high transmission, when indoors and when in crowded
outdoor areas. The use of face coverings by customers and visitors to
workplaces is also beneficial in reducing the overall risk of workplace
transmission of COVID-19.
    OSHA has always considered recognized consensus standards, with
design and construction specifications, when determining the PPE
requirements of the agency's standards. The OSH Act (29 U.S.C.
655(b)(8)) requires the agency to generally give deference to consensus
standards unless setting its own specifications would better effectuate
the purposes of the Act. The agency's standards generally require PPE
to conform to the specifications in consensus standards through
incorporation by reference (e.g., eye and face protection, head
protection, foot protection). ASTM released a specification standard on
February 15, 2021, to establish a national standard baseline for
barrier face coverings (ASTM F3502-21). OSHA considered, as required,
incorporation of ASTM F3502-21 in this ETS. However, the agency has
determined that it is infeasible for the timeframe of this ETS to
incorporate this consensus standard or to otherwise establish
additional criteria for face coverings beyond that already recommended
by the CDC due to the time needed to manufacture and distribute any new
product. OSHA notes the CDC's guidance on types of masks, including
those that meet ASTM F3502-21 requirements, and respirators as helpful
to employers and workers in selecting an appropriate product (CDC,
September 23, 2021).
    Relatedly, OSHA has previously established that medical facemasks
are essential PPE for workers in healthcare and associated industries,
and are already used by workers under both the general PPE standard (29
CFR 1910.132), and more specifically, the Bloodborne Pathogens standard
(29 CFR 1910.1030). Facemasks are intended for a medical purpose, such
as prevention of infectious disease transmission (including uses
related to COVID-19). Facemasks can function as a barrier to protect
the wearer from hazards such as splashes or large droplets of blood and
bodily fluids. Facemasks, such as surgical masks, must be FDA-cleared
or authorized by FDA, including under an EUA and provide a similar or
greater level of protection when serving the purposes of a face
covering. Respirators are another type of personal protective device
that OSHA has regulated under the Respiratory Protection standard (29
CFR 1910.134).
    The best available experimental and epidemiological data support
consistent use of face coverings by unvaccinated workers in work
settings to reduce the spread of COVID-19 through droplet transmission.
As discussed in Need for the ETS (Section III.B. of this preamble),
adopting face covering policies is necessary, as part of a strategy
combined with testing, to protect employees from exposure to COVID-19.
Requiring unvaccinated workers to wear face coverings in the workplace
will reduce the likelihood that, in conjunction with the testing
(paragraph (g)) and removal, of infected workers, (paragraph (h))
requirements, they will spread the virus to others, including other
unvaccinated coworkers. Based on the proven effectiveness of face
covering use, OSHA's COVID-19 ETS includes necessary provisions for
required use of face coverings by unvaccinated workers and provisions
to allow vaccinated workers and customers and visitors to wear face
coverings or respirators as a component of reducing the overall risk of
COVID-19 transmission in the workplace.
    The benefits that result from the use of face coverings for
preventing transmission of COVID-19 are derived from the combination of
source control (i.e., reducing the spread of large respiratory droplets
to others by covering an infected person's mouth and nose) and some
personal protection for the wearer, as was discussed above in the Need
for Face Coverings section. Face coverings are a vital layer of
protection, and the benefit to any given individual increases with
increasing community use. Paragraph (i) contains requirements for the
use of face coverings by each employee who is not fully vaccinated, as
well as alternatives to face coverings (e.g., facemasks, respirators)
that may be acceptable in some situations (described in detail below).
As defined in paragraph (c), a face covering means a covering that
completely covers the nose and mouth of the wearer, excluding face
shields, which is made with two or more layers of a breathable fabric
that is tightly woven, is secured to the wearer's head with ties, ear
loops, or elastic bands that go behind the head, and is a solid piece
of material without slits, exhalation valves, visible holes, or other
openings in the material. This definition encompasses face coverings
that otherwise meet the definition of face covering under paragraph
(c), but include clear plastic windows, such as those utilized by
persons communicating with those who are deaf or hard-of-hearing or
when seeing a person's mouth is otherwise important. Face coverings can
be manufactured or homemade, and they can incorporate a variety of
designs, structures, and materials. Face coverings can be disposable or
reusable. Face coverings do not have to meet a consensus standard,
although they might. Apart from any applicable FDA or NIOSH regulatory
requirements that might otherwise apply, such requirements are not
required solely for the purposes of meeting the requirements of this
standard.
    As a general rule, OSHA has authority to, and does, require
employers to bear the costs for protective equipment, among other
worker protections, required by an OSHA standard. See, e.g., 29 CFR
1910.1018(j) (requiring the employer to provide protective clothing at
no cost to the employee). However, in limited circumstances, OSHA has
chosen not to require employers to pay for some forms of non-
specialized protective equipment, such as every-day clothing, products
providing weather-related protection, and non-specialized equipment
that the employee wears off the job site. See 29 CFR 1910.132(h)(2)-
(5). Like the analogous situations listed above, here employees may use
their personal face coverings in a variety of circumstances on and off
the job site as part of their every-day protection. Because the types
of face coverings permitted under this ETS are widely used and readily
available, (see Technological Feasibility (Section IV.A. of this
preamble)), employees will have no difficulty obtaining them. OSHA is
requiring employers to bear the costs for employee vaccination, because
it is the more protective control, (Need for the ETS (Section III.B. of
this preamble). OSHA does not believe it appropriate to impose the
costs of personal face coverings on an employer where an employee has
made an individual choice to pursue a less protective option. For these
reasons, OSHA has

determined not to impose the costs of face coverings on the employer as
a requirement under this ETS.
    Paragraph (i)(1) requires employers to ensure that each employee
who is not fully vaccinated wears a face covering when indoors or when
occupying a vehicle with another person for work purposes, except (i)
when an employee is alone in a room with floor to ceilings windows and
a closed door. However, if that employee exits the room or another
individual enters the room, they are required to wear a face covering.
The second exception is (ii) for a limited time while an employee is
eating or drinking at the workplace or for identification purposes in
compliance with safety and security requirements. Under this exception,
employees are not required to wear face coverings during the limited
time while eating or drinking at the workplace. Employers may also let
employees eat or drink outside where there may be more space and
reduced risk of transmission. Additionally, under the exception in
paragraph (i)(1)(ii), employees are not required to wear a face
covering for a limited time for identification purposes in compliance
with safety and security requirements. This means that an unvaccinated
employee can temporarily remove their face covering when at a security
checkpoint within their worksite and when identification is otherwise
required.
    Another exception for required face coverings is under paragraph
(i)(1)(iii) for when an employee is wearing a respirator or facemask in
accordance with other OSHA standards (e.g., 1910.134, 1910.504,
1910.1030, 1910.502). Facemask or respirator use in accordance with
other OSHA standards takes precedence over face covering use in this
ETS. For example, OSHA standard 1910.1030 has requirements for
facemasks in healthcare settings and requires that workers should
continue to use the required facemask appropriate for that setting.
Another example may include a worker who is required to use a
respirator under 1910.134 for workplace exposure to harmful dusts,
where effective engineering controls are not feasible; that worker
should continue to use the required respirator. Employees must resume
wearing a face covering when not engaged in the activity where a
facemask or respirator is required as an essential part of their job.
The last exception, contained in paragraph (i)(1)(iv), is for a very
limited set of circumstances where employers can show that the use of
the face covering is infeasible or creates a greater hazard. Situations
where it is important to see an employee's mouth for reasons related to
their job duties, or their job requires the use of their uncovered
mouth, or when the use of a face covering presents a risk of serious
injury or death to the employee, would also be covered under this
provision. As has been previously discussed in Summary and Explanation
for paragraph (d) (Section VI.D. of this preamble), OSHA recognizes
that there may be certain workers who may not be able to wear a face
covering due to a disability or sincerely held religious belief and are
entitled to an accommodation.
    If employers receive accommodation requests relating to face
coverings or other protective gear, for example due to disability or
religious garb or grooming, they should evaluate those requests under
applicable laws (EEOC, October 25, 2021).
    Paragraph (i)(2) requires that employers ensure that any face
covering required to be worn by this section is: (i) Worn by the
employee to fully cover the employee's nose and mouth; and (ii)
replaced when wet, soiled, or damaged (e.g., is ripped, has holes, or
has broken ear loops). To be worn properly, face coverings must
completely cover the wearer's mouth and nose and must fit snugly
against the sides of the face without gaps. Gaps can let air with
respiratory droplets leak in and out around the edges of the mask. Face
coverings with a nose wire help to avoid issues with glasses fogging
and create a snug fit. Workers can also use a mask fitter or brace over
a disposable mask or a cloth mask to prevent air from leaking around
the edges of the mask. To ensure face coverings are worn properly, an
employer might appoint a manager or senior employee to check that each
unvaccinated employee is properly wearing a face covering at the start
of and throughout each shift. Many aspects of proper mask use are
easily observable (e.g., covering the mouth and nose, as well as no
observable gaps). Additionally, employers may consider utilizing
workplace announcements (email messages, safety talks, etc.) or
displaying signs or posters throughout the facility about proper face
covering usage.
    The employer must ensure that employees replace face coverings when
wet, soiled, or damaged (paragraph (i)(2)(ii)). Face coverings can
become soiled by splashes, sprays, or splatters, from contact with a
contaminated surface, or by touching/adjusting them with contaminated
hands. Damaged face coverings may not fit properly and thus will have
reduced effectiveness. Employees who work where there is potential for
spills, sprays, or splashes may need to change or replace their face
coverings more frequently (e.g., in food, meat, or poultry processing
plants; water, sanitation, or wastewater treatment facilities; or
restaurants). As note 1 to paragraph (i) addresses, face shields may be
worn in addition to face coverings to prevent them from getting wet and
soiled. For work where face coverings are expected to become dirty or
soiled less frequently, employees may only need to replace their face
coverings daily (e.g., in retail or office buildings). Regardless of
work location, reusable face coverings can become soiled after each use
and may be contaminated with bacteria and viruses, including the virus
that causes COVID-19. To ensure performance and minimize the risk of
contaminating employees after contact with a soiled face covering, as
described previously, the CDC recommends washing them whenever they get
dirty, but at least once a day. The CDC also has guidance on the
selection, proper wearing, cleaning, and storage of face coverings
(CDC, August 13, 2021).
    The employer must not prevent any employee, regardless of
vaccination status, from voluntarily wearing a face covering or
facemask unless the employer can demonstrate that doing so would create
a hazard (paragraph (i)(3)). While vaccination greatly reduces the risk
of the most severe consequences of COVID-19 (e.g. hospitalizations and
fatalities) to workers, it does not reduce the risk to zero and thus
workers must be permitted to wear face coverings or facemasks even when
not required to in order to allow the workers to further address
residual risk. The agency has determined this provision is necessary
because employees may themselves have additional medical risk factors
that employers may or may not be aware of, and which require enhanced
precautions. Similarly, employees may live with or have frequent
contact with family members or others who have enhanced risk if
infected with COVID-19 and thus justify assuring the employees' ability
to take reasonable precautions to protect their own health and safety
or that of loved ones.
    Paragraph (i)(4) states that the employer must permit the employee
to wear a respirator instead of a face covering whether required or not
(i.e., without regard to vaccination status), and the employer may
provide respirators to the employee, even if not required. This means
that when a face covering is not required by paragraph (i)(1), the
employer must permit the employee to wear a respirator or the employer
may even provide a respirator; in such circumstances, the employer must
also comply with 1910.504 (the mini respiratory protection program).

Respirators, as defined in paragraph (c), are a type of PPE that are
certified by NIOSH or authorized under an Emergency Use Authorization
(EUA) by the FDA, and protect against airborne hazards by removing
specific air contaminants from the ambient (surrounding) air or by
supplying breathable air from a safe source. Respirator use can provide
an additional level of comfort and protection beyond that provided by
face coverings for employees in circumstances that do not require a
respirator to be used. As discussed previously, the agency has
determined that workers need the ability to wear PPE, even when it is
not required, in order to address residual risk and due to health
conditions that either they or their close contacts may have that
warrant enhanced precautions. For a more in-depth description of the
mini respiratory protection program, see the preamble to the Healthcare
ETS (86 FR 32615-32617). OSHA intends the mini respirator protection
program to be preserved for the duration of this ETS, and any
references relied upon by OSHA in those sections of the Healthcare ETS
are also incorporated explicitly into the rulemaking docket for this
ETS.
    The mini respiratory protection program is designed to strengthen
employee protections with a small set of provisions for the safe use of
respirators designed to be easier and faster to implement than the more
comprehensive respiratory protection program under 29 CFR 1910.134.
This ETS is addressing an emergency health crisis, so it is critical
for employers to be able to get more employee protection in place
quickly. OSHA expects that this approach will facilitate additional
employee choice for the additional protection provided by respirators
while reducing disincentives that may have discouraged employers from
allowing or voluntarily providing respirators. A mini respirator
program is therefore an important control to protect employees from the
hazard posed by COVID-19.
    The mini respiratory protection program is primarily intended to be
used for addressing circumstances where employees are not exposed to
suspected or confirmed sources of COVID-19, but where respirator use
could offer enhanced protection to employees. Examples include when a
respirator could offer enhanced protection in circumstances where a
less protective (in terms of filtering and fit) face covering is
required under the ETS (See 29 CFR 1910.501(i)(1)). The decision to use
a respirator in place of a face covering could be due to the higher
filter efficiency and better sealing characteristics of respirators
when compared to face coverings. For additional discussion, the
rationale for the mini respiratory protection program was addressed in
detail in Need for Specific Provisions in the agency's prior rulemaking
on 1910.504, and the requirements of the mini respiratory protection
program section are discussed in Summary and Explanation in the
agency's prior rulemaking on 1910.504.
    As required by paragraph (i)(5), the employers must not prohibit
customers or visitors from wearing face coverings. Face coverings are a
vital layer of protection against the risk of COVID-19. (See the
discussion earlier in this section on the benefits to individuals
associated with increased community use.) This provision is necessary
because increased use of face coverings also reduces the overall risk
of COVID-19 transmission from the customers and visitors to workers,
both unvaccinated and vaccinated alike. Additionally, it allows
customers and visitors to protect their own health and safety.
Employers may even want to create a policy encouraging the use of face
coverings by anyone who enters the business; they are encouraged to
coordinate with state and local health officials to obtain and respond
appropriately to timely and accurate information (e.g., level of
community transmission, health system capacity, vaccination coverage,
capacity for early detection of increases in COVID-19 cases, and
populations at risk for severe outcomes from COVID-19). Local
conditions will influence the decisions that public health officials
make regarding community-level strategies. Additionally, workers and
their representatives may also negotiate additional face covering
measures not required by the ETS through collective bargaining
agreements or other collectively negotiated agreements.
    Lastly, for the reasons explained above, note 2 to paragraph (i)
clarifies that this section does not require the employer to pay for
any costs associated with face coverings. However, the note also makes
clear that this section does not prohibit the employer from paying for
costs associated with face coverings required by this section. OSHA
notes that employer payment for face coverings may be required by other
laws, regulations, or collective bargaining agreements or other
collectively negotiated agreements. Additionally, workers and their
representatives may also negotiate employer payment for face coverings
not required by the ETS through collective bargaining agreements or
other collectively negotiated agreements.

References

Brooks J et al. (2021, February 10). Maximizing fit for cloth and
medical procedure masks to improve performance and reduce SARS-CoV-2
transmission and exposure. MMWR. doi: http://dx.doi.org/10.15585/mmwr.mm7007e1. (Brooks et al., February 10, 2021)
Centers for Disease Control and Prevention (CDC). (2021, February
2). Order under Section 361 of the Public Health Service Act (42
U.S.C. 264) and 42 Code of Federal Regulations 70.2, 71.31(b),
71.32(b). Federal Register notice: Wearing of face masks while on
conveyances and at transportation hubs. https://www.cdc.gov/quarantine/masks/mask-travel-guidance.html. (CDC, February 2, 2021)
Centers for Disease Control and Prevention (CDC). (2021, May 7).
Scientific brief: Community Use of Cloth Masks to Control the Spread
of SARS-CoV-2. https://www.cdc.gov/coronavirus/2019-ncov/more/masking-science-sars-cov2.html. (CDC, May 7, 2021)
Centers for Disease Control and Prevention (CDC). (2021, July 14).
How COVID-19 spreads. https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. (CDC, July 14, 2021)
Centers for Disease Control and Prevention (CDC). (2021, August 13).
Your Guide to Masks. https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html. (CDC, August 13,
2021)
Centers for Disease Control and Prevention (CDC). (2021, September
23). Types of Masks and Respirators. https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/types-of-masks.html.
(CDC, September 23, 2021)
Chernozhukov V et al. (2020, September 15). Causal impact of masks,
policies, behavior on early COVID-19 pandemic in the U.S. Journal of
Econometrics. doi: https://doi.org/10.1016/j.jeconom.2020.09.003.
(Chernozhukov et al., September 15, 2020)
Christie A et al. (2021, July 30). Guidance for implementing COVID-
19 prevention strategies in the context of varying community
transmission levels and vaccination coverage. MMWR 70: 1044-1047.
http://dx.doi.org/10.15585/mmwr.mm7030e2. (Christie et at., July 30,
2021).
Chu DK et al. (2020, June 27). Physical Distancing, Face Masks, and
Eye Protection to Prevent Person-to-Person Transmission of SARS-CoV-
2 and COVID-19: A systematic review and meta-analysis. The Lancet.
395: 1973-1987. https://doi.org/10.1016/. (Chu et al., June 27,
2020)
Doung-ngern P et al. (2020). Case-control study of use of personal
protective measures and risk for SARS-CoV-2 infection, Thailand.
Emerging Infectious Diseases, 26(11), 2607-2616. doi: https://

dx.doi.org/10.3201/eid2611.203003. (Doung-ngern et al., September
14, 2020).
Equal Employment Opportunity Commission (EEOC). (2021, October 25).
What You Should Know About COVID-19 and the ADA, the Rehabilitation
Act, and Other EEO Laws. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
(EEOC, October 25, 2021)
Fischer E et al. (2020, September 2). Low-cost measurement of face
mask efficacy for filtering expelled particles during speech.
Science Advances, 6(36). doi: https://doi.org/10.1126/sciadv.abd3083. (Fischer et al., September 2, 2020)
Freedman D and Wilder-Smith A. (2020, September 25). In-flight
transmission of SARS-CoV-2: A review of the attack rates and
available data on the efficacy of face masks. Journal of Travel
Medicine. doi: https://doi.org/10.1093/jtm/taaa178. (Freedman and
Wilder-Smith, September 25, 2020)
Gallaway S et al. (2020, October 6). Trends in COVID-19 incidence
after implementation of mitigation measures--Arizona, January 22-
August 7, 2020. MMWR, 69, 1460-1463. doi: http://dx.doi.org/10.15585/mmwr.mm6940e3. (Gallaway et al., October 6, 2020)
Guy GP Jr et al. (2021, March 12). Association of State-Issued Mask
Mandates and Allowing On-Premises Restaurant Dining with County-
Level COVID-19 Case and Death Growth Rates--United States, March 1-
December 31, 2020. MMWR Morb Mortal Wkly Rep 2021; 70: 350-354. doi:
http://dx.doi.org/10.15585/mmwr.mm7010e3. (Guy et al., March 12,
2021)
Hatzius J et al. (2020, June 29). Face masks and GDP. Goldman Sachs
Research. https://www.goldmansachs.com/insights/pages/face-masks-and-gdp.html. (Hatzius et al., June 29, 2020)
Hendrix J et al. (2020, July 17). Absence of apparent transmission
of SARS-CoV-2 from two stylists after exposure at a hair salon with
a universal face covering policy--Springfield, Missouri, May 2020.
MMWR, 69, 930-932. doi: http://dx.doi.org/10.15585/mmwr.mm6928e2.
(Hendrix et al., July 17, 2020)
Honein MA et al. (2020, December 11). Summary of Guidance for Public
Health Strategies to Address High Levels of Community Transmission
of SARS-CoV-2 and Related Deaths, December 2020. MMWR Morb Mortal
Wkly Rep 2020; 69: 1860-1867. doi: http://dx.doi.org/10.15585/mmwr.mm6949e2. (Honein et al., December 11, 2020)
Jehn M et al. (2021, October 1). Association between K-12 school
mask policies and school-associated COVID-19 outbreaks--Maricopa and
Pima Counties, Arizona, July-August 2021. MMWR 70: 1372-1373. http://dx.doi.org/10.15585/mmwr.mm7039e1. (Jehn et al., October 1, 2021).
Johansson MA et al. (2021, January 7). SARS-CoV-2 transmission from
people without COVID-19 symptoms. JAMA Network Open, 4(1), e2035057.
https://doi.org/10.1001/jamanetworkopen.2020.35057. (Johansson et
al., January 7, 2021)
Joo H, Miller GF, Sunshine G, et al. (2021, February 12). Decline in
COVID-19 Hospitalization Growth Rates Associated with Statewide Mask
Mandates--10 States, March-October 2020. MMWR Morb Mortal Wkly Rep
2021; 70: 212-216. doi: http://dx.doi.org/10.15585/mmwr.mm7006e2.
(Joo et al., February 12, 2021)
Karaivanov A et al. (2020, October 1). Face masks, public policies
and slowing the spread of COVID-19: Evidence from Canada. National
Bureau of Economic Research. http://www.nber.org/papers/w27891.
(Karaivanov et al., October 1, 2020)
Leffler C et al. (2020, December 2). Association of country-wide
Coronavirus mortality with demographics, testing, lockdowns, and
public wearing of masks. The American Journal of Tropical Medicine
and Hygiene, 103(6), 2400-2411. https://doi.org/10.4269/ajtmh.20-1015. (Leffler et al., December 2, 2020)
Lyu W and Wehby G. (2020, June 16). Community use of face masks and
COVID-19: Evidence from a natural experiment of state mandates in
the U.S. Health Affairs, 39(8), 1419-1425. doi: 10.1377/
hlthaff.2020.00818. (Lyu and Wehby, June 16, 2020)
Mitze T et al. (2020, June 1). Face masks considerably reduce COVID-
19 cases in Germany: A synthetic control method approach. IZA--
Institute of Labor Economics (Germany). http://ftp.iza.org/dp13319.pdf. (Mitze et al., June 1, 2020)
Moghadas S et al. (2020, July 6). The implications of silent
transmission for the control of COVID-19 outbreaks. Proceedings of
the National Academy of Sciences of the United States of America,
117(30), 17513-17515. doi: https://doi.org/10.1073/pnas.2008373117.
(Moghadas et al., July 6, 2020)
Occupational Safety and Health Administration (OSHA). (2021, January
28). Frequently asked questions COVID-19. https://www.osha.gov/coronavirus/faqs. (OSHA, January 28, 2021)
Payne D et al. (2020, June 12). SARS-CoV-2 infections and serologic
responses from a sample of U.S. Navy Service Members--USS Theodore
Roosevelt. MMWR, 69(23), 714-721. doi: https://doi.org/10.15585/mmwr.mm6923e4. (Payne et al., June 12, 2020)
Schwartz K et al. (2020, April 14). Lack of COVID-19 transmission on
an international flight. Canadian Medical Association Journal,
192(15), E410. doi: https://doi.org/10.1503/cmaj.75015. (Schwartz et
al., April 14, 2020)
Siegel J, Rhinehart E, Jackson M, Chiarello L, and the Healthcare
Infection Control Practices Advisory Committee. (2007). 2007
Guideline for isolation precautions: Preventing transmission of
infectious agents in healthcare settings. https://www.cdc.gov/infectioncontrol/pdf/guidelines/isolation-guidelines-H.pdf. (Siegel
et al., 2007)
Ueki H et al. (2020, October 21). Effectiveness of Face Masks in
Preventing Airborne Transmission of SARS-CoV-2. mSphere 5: e00637-
20. https://doi.org/10.1128/mSphere.00637-20. (Ueki et al., October
21, 2020)
Verma S et al. (2020, June 30). Visualizing the effectiveness of
face masks in obstructing respiratory jets. Physics of Fluids,
32(6), 061708. doi: https://doi.org/10.1063/5.0016018. (Verma et
al., June 30, 2020)
Wang X et al. (2020, July 14). Association between universal masking
in a health care system and SARS-CoV-2 positivity among health care
workers. Journal of the American Medical Association, 324(7), 703-
704. doi: 10.1001/jama.2020.12897. (Wang et al., July 14, 2020)
Wang Y et al. (2020, May 11). Reduction of secondary transmission of
SAR-CoV-2 in households by face mask use, disinfection and social
distancing: A cohort study in Beijing, China. BMJ Global Health, 5,
e002794. doi: 10.1136/bmjgh-2020-002794. (Wang et al., May 11, 2020)
World Health Organization (WHO). (2020, December 1). Mask use in the
context of COVID-19. https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/when-and-how-to-use-masks. (WHO,
December 1, 2020)

J. Information Provided to Employees

    In order to successfully implement the provisions of the ETS, it is
critical that employers provide relevant information to employees.
Employers must provide employees with the information specified in
paragraph (j), an essential part of this ETS, because it helps to
ensure that employees understand both their rights and responsibilities
under the ETS and their employer's policies and procedures. The ETS
cannot be effective if employees do not have sufficient knowledge and
understanding of the requirements of the ETS, their employers' policies
and procedures, information about available COVID-19 vaccines, their
protections against retaliation and discrimination, and the potential
penalties for knowingly providing false information to their employer.
    Paragraph (j) provides that employers must provide the required
information to each employee in a language and at a literacy level the
employee understands. This means that if an employer has employees that
speak different languages or are at different literacy levels, the
employer must present information in a way that ensures each employee
can understand it. This may require an employer to create different
materials for different groups of employees (e.g., materials in
different languages). When information must be translated into
different languages, employers must ensure the translation is one the
employees can

understand. When an employer provides employees with the required
information in a manner employees understand, they help ensure that
their implementation of this ETS is successful.
    The manner in which employers provide the required information to
employees may vary based on the size and type of workplace. Employers
have flexibility to communicate this information to employees using any
effective methods that are typically used in their workplaces, and may
choose any method of informing employees so long as each employee
receives the information specified in the standard in a language and at
a literacy level they understand. For example, an employer may provide
this information to employees through email communications, printed
fact sheets, or during a discussion at a regularly scheduled team
meeting. To ensure comprehension of the information provided, employers
can identify a point-of-contact for employees who have questions about
the information provided.
    Paragraphs (j)(1)-(4) specify the information that employers must
provide to employees. Paragraph (j)(1) requires employers to provide
each employee with information regarding the requirements of Sec.
1910.501 and any policies and procedures the employer establishes to
implement this ETS. The information provided to employees must cover
any employer policies under paragraph (d), including the details of the
employer's vaccination policy. Employers must also inform employees
about the process that will be used to determine employee vaccination
status, as required under paragraph (e). In addition, employers must
inform employees about the time and pay/leave they are entitled to for
vaccinations and any side effects experienced following vaccinations,
as required by paragraph (f). And employers must also inform employees
about the procedures they need to follow to provide notice of a
positive COVID-19 test or diagnosis of COVID-19 by a licensed
healthcare provider, as required under paragraph (h), as well as the
procedures to be used for requesting records under paragraph (l).
Employers must provide additional information to unvaccinated
employees, including information about the employer's policies and
procedures for COVID-19 testing and face coverings, as required by
paragraphs (g) and (i), respectively.
    Some employers may have informed employees about their COVID-
related workplace-specific policies, e.g., policies on vaccination,
testing, and face coverings, prior to the effective date of this ETS.
Employers may rely on any such prior communications for purposes of
complying with paragraph (j)(1) to the extent that the prior
communications meet the relevant requirements of paragraph (j) and
there have been no changes to the relevant policies. Employers must
review and evaluate the information already provided to determine
whether it covers all of the information necessary under paragraph
(j)(1). If previous information provided to employees did not cover all
of the required elements, the employer must provide employees the
information on those missing elements to come into compliance with the
ETS. For example, if an employer has a mandatory vaccination policy and
has already provided information to the employees on the policies and
procedures the employer has established to implement that policy, and
provided that information in a language and at a literacy level each
employee can understand, the employer would not need to expend
resources to provide that information again to meet the requirements
under this ETS. However, the employer would still need to provide
information to its employees about other new policies and procedures
established to implement the ETS.
    When an employer's policies or procedures change, the employer must
provide any updated or supplemental information to employees. For
example, an employer may initially opt to allow only paper copies as
proof of COVID-19 test results. Over time, however, the employer may
decide that it wants to accept electronic proof of test results. If
that employer modifies its policy to permit employees to submit
electronic proof of test results, the employer must inform employees of
any new or altered policies and procedures that the employer implements
as a result.
    Paragraph (j)(2) requires employers to provide information to each
employee about COVID-19 vaccine efficacy, safety, and the benefits of
being vaccinated. To meet this requirement, employers must provide the
CDC's document, ``Key Things to Know About COVID-19 Vaccines,''
available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html (CDC, October 7, 2021), to each employee. The
employer may choose to provide this information to employees in either
an electronic or print format. The CDC currently provides this document
in multiple languages; however, employers may need to provide
additional translations if necessary to inform each employee of the
contents of the document in a language they understand. Employers do
not have any further obligations to create or provide information on
vaccine efficacy, safety, or the benefits of being vaccinated beyond
providing the aforementioned CDC document to each employee.
    Paragraph (j)(3) requires employers to inform each employee about
the requirements of 29 CFR 1904.35(b)(1)(iv) and section 11(c) of the
OSH Act. These two provisions work together to protect employees from
retaliation for engaging in activities protected by OSHA statute or
regulation. The first of these provisions, section 1904.35(b)(1)(iv),
prohibits employers from discharging or in any manner discriminating
against any employee for reporting a work-related injury or illness.
The second provision, section 11(c) of the OSH Act, prohibits employers
from discriminating against employees for exercising rights under, or
as a result of actions required by, the ETS. Section 11(c) also
protects employees from retaliation for filing an occupational safety
or health complaint, reporting a work-related injury or illness, or
otherwise exercising any rights afforded by the OSH Act.
    Retaliation takes many forms; it occurs when an employer (through a
manager, supervisor, or administrator) fires an employee or takes any
other type of adverse employment action against an employee for
engaging in a protected activity. Adverse employment actions include
discipline, reducing pay or hours, reassignment to a less desirable
position, denying overtime or promotion, intimidation or harassment,
and any other action that would dissuade a reasonable employee from
raising a concern about a possible violation or engaging in other
protected activity (see Burlington Northern & Santa Fe Railway Co. v.
White, 548 U.S. 53, 57 (2006) holding, in the Title VII context, that
the test for determining whether a particular employment action is
materially adverse is whether it ``could well dissuade'' a reasonable
person from engaging in protected activity).
    The ETS does not change employers' substantive obligations under
either 29 CFR 1904.35(b)(1)(iv) or section 11(c) of the OSH Act.
Rather, it simply requires employers to make employees aware of these
provisions and their requirements. By increasing awareness, OSHA
believes that paragraph (j)(3) will prevent acts of retaliation from
occurring in the workplace, encourage employees to exercise their right
to the protections of the ETS, and engage

employees in actions required by the ETS.
    It is critically important for employees to be aware of, and to be
able to exercise, their rights under the ETS. Employee participation is
essential to mitigating the spread of COVID-19 in the workplace, and
fear of retaliation would undermine the effectiveness of the ETS. For
example, per paragraph (f) of this ETS, employers must provide
employees up to 4 hours of paid time at the employee's regular rate of
pay for each vaccination dose, as well as reasonable time and paid sick
leave for employees to recover from side effects experienced following
any vaccination dose. If an employer fails to comply with paragraph (f)
and then retaliates against employees who object, employees may be
deterred from being vaccinated. Similarly, if employees fear
retaliation, they will be less likely to voice concerns about
unvaccinated co-workers who do not wear required face coverings (see
paragraph (i)(1)). A workplace free from the threat of retaliation
promotes collaboration between employers and employees and allows
employers to more effectively implement the various requirements of
this ETS.
    OSHA has received a record number of complaints of retaliation
during the COVID-19 pandemic. The agency's website shows that, as of
September 26, 2021, OSHA had received 5,788 complaints of retaliation
related to workplace protections from COVID-19 (OSHA, September 29,
2021). These figures indicate that some employers need to be reminded
that they are legally prohibited from engaging in retaliatory actions.
Additionally, employees likely need reassurance of their legal right to
engage in protected activity without fear of suffering from adverse
employment actions. As such, it is critical for employers to inform
employees of the prohibitions against retaliation in 29 CFR
1904.35(b)(1)(iv) and section 11(c) after the effective date of the
ETS, without regard to any information they may have provided
previously on these anti-retaliation provisions. As with the other
parts of paragraph (j), employers have flexibility regarding how they
will provide the required information.
    Paragraph (j)(4) requires employers to provide each employee with
information regarding the prohibitions of 18 U.S.C. 1001 and Section
17(g) of the OSH Act, which provide for criminal penalties associated
with knowingly supplying false statements or documentation. The first
of these two provisions, 18 U.S.C. 1001(a) is described earlier in this
preamble and provides for fines or imprisonment for persons who
``knowingly and willfully'' (1) falsifies, conceals, or covers up by
any trick, scheme, or device a material fact; (2) makes any materially
false, fictitious, or fraudulent statement or representation; or (3)
makes or uses any false writing or document knowing the same to contain
any materially false, fictitious, or fraudulent statement or entry. And
section 17(g) of the OSH Act provides for fines up to $10,000, and
imprisonment for not more than six months, or both, for anyone who
``knowingly makes any false statement, representation, or
certification'' in any application, record, report, plan, or other
document ``filed or required to be maintained pursuant to this
chapter.'' False statements or documents made or submitted for purposes
of complying with policies required by this ETS could fall under either
or both of these statutory provisions.
    This ETS requires that each employee provide their employer either
COVID-19 vaccination documentation (paragraph (e)), or, if applicable,
regular COVID-19 test results (paragraph (g)). There is a significant
public health interest in ensuring employees provide this information
truthfully to the employer. Employers cannot effectively implement the
requirements of this ETS based on false information. By increasing
awareness of the possible penalties an employee may face for
misrepresenting their vaccination status or test results, OSHA intends
to discourage such behavior. Employers can satisfy the requirement of
paragraph (j)(4) by providing each employee with the text of the two
statutory provisions in hard copy or via electronic communication
(e.g., email), translated as necessary into other languages,
emphasizing the importance of providing truthful information about
vaccine status and test results, and explaining that providing false
information could be punishable under the two provisions. Employers are
not required to provide further explanation of the statutory provisions
or to provide legal advice.
    Information requirements are routine components of OSHA standards.
The inclusion of information requirements in this ETS reflects the
agency's conviction, as noted above, that informed employees are
essential to the implementation of any effective occupational safety
and health policy or procedure. OSHA believes that informing employees
about their rights and responsibilities under the ETS; the employer's
policies and procedures; and the safety, efficacy, and benefits of
vaccination will help increase the number of employees vaccinated and
will facilitate effective implementation of the standard by employers.

References

Centers for Disease Control and Prevention (CDC). (2021, October 7).
Key Things to Know About COVID-19 Vaccines. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html. (CDC, October
7, 2021).
Occupational Safety and Health Administration (OSHA). (2021,
September 29). COVID-19 Response Summary: Summary Data for Federal
Programs--Whistleblower Data. https://www.whistleblowers.gov/covid-19-data. (OSHA, September 29, 2021).

K. Reporting COVID-19 Fatalities and Hospitalizations to OSHA

    OSHA has required employers to report work-related fatalities and
certain work-related hospitalizations under its recordkeeping
regulation since 1971. These requirements have been an important part
of the agency's statutory mission to assure safe and healthful working
conditions for all working people. All employers covered by the OSH
Act, including employers who are partially exempt from maintaining
injury and illness records, are required to comply with OSHA reporting
requirements at 29 CFR 1904.39. Under OSHA's current reporting
regulation, employers are required to report each work-related fatality
to OSHA within 8 hours of the event, and each work-related in-patient
hospitalization, amputation, and loss of an eye within 24 hours of the
event.
    The purpose of the reporting requirement in Sec.  1904.39 is to
provide OSHA with information to determine whether it is necessary for
the agency to conduct an immediate investigation at a specific
establishment. Employer reports of work-related COVID-19 fatalities and
in-patient hospitalizations are an important element of the agency's
efforts to reduce occupational exposure to the virus. After receiving
an employer report, OSHA decides whether an inspection is needed to
determine the cause of a work-related COVID-19 fatality or in-patient
hospitalization, and whether any OSHA standards may have been violated.
These reports are critical for the agency to respond quickly to COVID-
19 exposure that may pose an ongoing risk to other employees at the
worksite. Timely investigation also allows OSHA to view evidence at a
workplace soon after a work-related COVID-19 fatality or in-patient
hospitalization has occurred, and can make it easier for the agency to
gather relevant information from others at the worksite that might be
useful in

protecting other employees. Moreover, prompt inspection enables OSHA to
gather information to evaluate whether its current standards adequately
address the workplace hazard presented from COVID-19. The information
gathered from employer reports is also used by the agency to form the
basis of statistical data on the causes and remediation of work-related
COVID-19 fatalities and in-patient hospitalizations.
    In order to address the unique circumstances presented by COVID-19,
and to facilitate OSHA investigation and better workplace health
surveillance, paragraph (k)(1) requires covered employers to report
each work-related COVID-19 fatality to OSHA within 8 hours of the
employer learning about the fatality, and each work-related COVID-19
in-patient hospitalization to OSHA within 24 hours of the employer
learning about the in-patient hospitalization. As described in more
detail in the following discussion, OSHA is adding these additional
COVID-19 reporting requirements because the delay in the manifestation
and progression of symptoms of COVID-19 can lead to hospitalization or
fatality outside the normal window for reporting those workplace
events.
    Paragraph (k)(1)(i) provides that employers must report each work-
related COVID-19 fatality to OSHA within 8 hours of the employer
learning about the fatality. Under this paragraph, an employer must
make a report to OSHA within 8 hours of learning both (1) that an
employee has died from a confirmed case of COVID-19, and (2) that the
cause of death was the result of a work-related exposure to COVID-19.
Employers are only required to report confirmed cases of COVID-19 as
defined by the Centers for Disease Control and Prevention (CDC) (CDC,
May 20, 2020). Typically, the cause of death is determined by the
physician who was responsible for a patient who died in a hospital,
although the cause of death can also be determined by others such as
medical examiners or coroners (Pappas, May 19, 2020).
    The requirement in paragraph (k)(1)(i) is similar to the fatality
reporting requirement in OSHA's regulation at 29 CFR 1904.39(a)(1),
which requires an employer to report to OSHA within 8 hours after the
death of any employee as the result of a work-related incident.
However, 29 CFR 1904.39(b)(6) requires employers to report a work-
related fatality to OSHA only if the fatality occurs within 30 days of
``the work-related incident.'' Prior to this ETS, for purposes of
reporting events involving COVID-19, OSHA interpreted the phrase ``the
work-related incident'' to mean ``exposure'' in the work environment.
Therefore, in order to be reportable under 29 CFR 1904.39(a)(1), a
work-related fatality due to COVID-19 needed to have occurred within 30
days of an employee's exposure in the work environment. Given the
possibility of long-term illness before death, the 30-day limitation
for reporting fatalities to OSHA could restrict OSHA's ability to
receive information about work-related COVID-19 fatalities.
    To address these issues, OSHA has chosen not to apply the 30-day
limitation period from 29 CFR 1904.39(b)(6) to the reporting provision
in paragraph (k) (see paragraph (k)(2)). Therefore, the requirement to
report these fatalities is not limited by the length of time between
workplace exposure and death. The reporting of work-related COVID-19
fatalities that occur beyond 30 days from the time of exposure will
enable the agency to evaluate more work-related COVID-19 fatalities to
determine whether immediate investigations are needed to prevent other
employees at the same worksite from being exposed to the virus. The
report of these fatalities to OSHA facilitates the agency's timely
tracking of this data. Accordingly, paragraph (k)(1)(i) requires
employers to report each work-related COVID-19 fatality to OSHA within
8 hours of the employer learning about the fatality regardless of when
the exposure in the work environment occurred.
    Paragraph (k)(1)(ii) of the standard requires an employer to report
each work-related COVID-19 in-patient hospitalization to OSHA within 24
hours of the employer learning about the in-patient hospitalization.
Under this paragraph, and similar to OSHA's reporting regulation at 29
CFR 1904.39, an employer must make a report to OSHA within 24 hours of
learning that (1) an employee has been in-patient hospitalized due to a
confirmed case of COVID-19, and (2) the reason for the hospitalization
was the result of a work-related exposure to the illness.
    OSHA's current reporting regulation at 29 CFR 1904.39(a)(2)
provides that, within 24 hours after the in-patient hospitalization of
one or more employees, as the result of a work-related incident, an
employer must report the in-patient hospitalization to OSHA. 29 CFR
1904.39(b)(6) requires employers to only report in-patient
hospitalizations to OSHA if the hospitalization occurs within 24 hours
of the work-related incident. For example, if an employee trips in the
workplace and sustains an injury on Monday, but is not hospitalized
until Thursday, the employer does not need to report the event. In this
example, ``the work-related incident'' occurred on Monday when the
employee tripped and was injured in the workplace. Also, under Sec.
1904.39, employers must report in-patient hospitalizations to OSHA
within 24 hours of knowing both that the employee has been in-patient
hospitalized and that the reason for the hospitalization was the result
of ``the work-related incident'' (see 29 CFR 1904.39(a)(2), (b)(7)-
(b)(8)). In non-COVID cases, the work-relatedness of the injury is
typically apparent immediately.
    Since the beginning of the pandemic, the reporting of work-related
COVID-19 in-patient hospitalizations under 29 CFR 1904.39 has presented
unique challenges. As noted above, for purposes of reporting COVID-19
fatalities and in-patient hospitalizations, OSHA has interpreted the
phrase ``the work-related incident'' in 29 CFR 1904.39(b)(6) to mean an
employee's ``exposure'' to COVID-19 in the work environment. Thus, in
order to be reportable, an in-patient hospitalization needed to occur
within 24 hours of an employee's exposure to COVID-19 in the work
environment. Given the incubation period of the virus, and the typical
timeframe between exposure and the emergence of symptoms serious enough
to require hospitalization, it is extremely unlikely for an in-patient
hospitalization to occur within 24 hours of an employee's exposure to
the virus.
    To address these issues, paragraph (k)(1)(ii) does not limit the
COVID-19 reporting requirement to only those hospitalizations that
occur within 24 hours of exposure, as in 29 CFR 1904.39(b)(6). This
change in the reporting requirement will result in OSHA making more
determinations as to whether immediate investigations are needed at
additional worksites. Given the severity of the disease, and how
quickly it can spread, it is essential that remediation efforts at a
workplace be undertaken immediately. As noted above, it is critical for
OSHA to respond quickly to hazardous conditions where employees have
been hospitalized. The elimination of the 24-hour limitation period
will not only allow OSHA to receive more employer reports about work-
related COVID-19 in-patient hospitalizations and, as a result, shed
light on where severe COVID-19 events are occurring, but it will also
enable the agency to respond more quickly and effectively to these
situations. Accordingly, employers must report each work-related COVID-
19 in-patient hospitalization to OSHA regardless of when the employee's
exposure in the workplace occurred (paragraph

(k)(1)(ii)). But consistent with OSHA's normal reporting requirements,
when hospitalization for a work-related case of COVID-19 does occur,
the employer must report it within 24 hours of learning about the
hospitalization.
    Additionally, for purposes of this section, OSHA defines in-patient
hospitalization as a formal admission to the in-patient services of a
hospital or clinic for care or treatment (see 29 CFR 1904.39(b)(9) and
(b)(10)). The determination as to whether an employee is formally
admitted into the in-patient service is made by the hospital or clinic.
Treatment in an Emergency Room only is not reportable.
I. Work-Relatedness Determinations
    Given the nature of the disease, and the extent of community
spread, in some cases, it may be difficult for an employer to determine
whether an employee's COVID-19 illness is work-related, especially when
an employee has experienced potential exposure both in and out of the
workplace. For purposes of this ETS, when evaluating whether a fatality
or in-patient hospitalization is the result of a work-related case of
COVID-19, employers must follow the criteria in OSHA's recordkeeping
regulation at 29 CFR 1904.5 for determining work-relatedness. Applying
the criteria in 29 CFR 1904.5 under paragraph (k) of this ETS is
consistent with how employers make work-relatedness determinations when
reporting fatalities and other serious events under 29 CFR 1904.39.
    Under Sec.  1904.5, employers must consider an injury or illness to
be work-related if an event or exposure in the work environment either
caused or contributed to the resulting condition, or significantly
aggravated a pre-existing injury or illness. An injury or illness is
presumed work-related if it results from events or exposures occurring
in the work environment, unless an exception in Sec.  1904.5(b)(2)
specifically applies. Under this language, an injury or illness is
presumed work-related if an event or exposure in the work environment
is a discernable cause of the injury or illness (see 66 FR 66,943
(December 27, 2001)).
    According to 29 CFR 1904.5(b)(3), the ``work environment'' includes
the employer's establishment and any other location where work is
performed or where employees are present as a condition of their
employment. Under 29 CFR 1904.5(b)(3), employers should evaluate the
employee's work duties and environment and determine whether it is more
likely than not that exposure at work caused or contributed to the
illness (see 66 FR 5958-59 (January 19, 2001)).
    Because of the typical incubation period of 3 to 14 days, an
employee's exposure to COVID-19 will usually be determined after the
fact. Employers must make reasonable efforts to acquire the necessary
information to make good-faith work-relatedness determinations under
this section. In addition, the employer should rely on information that
is reasonably available at the time of the fatality or in-patient
hospitalization.
    A work-related exposure in the work environment would likely
include close contact with a person known to be infected with COVID-19.
For example, although work-relatedness must be determined on a case-by-
case basis, if a number of COVID-19 illnesses develop among coworkers
who work closely together without an alternative explanation, it is
reasonable to conclude that an employee's fatality or in-patient
hospitalization is work-related. On the other hand, if there is not a
known exposure to COVID-19 that would trigger the presumption of work-
relatedness, the employer must evaluate the employee's work duties and
environment to determine whether it is more likely than not that the
employee was exposed to COVID-19 during the course of their employment.
Employers should consider factors such as:
     The type, extent, and duration of contact the employee had
at the work environment with other people, particularly the general
public.
     Physical distancing and other controls that impact the
likelihood of work-related exposure.
     The extent and duration of time spent in a shared indoor
space with limited ventilation.
     Whether the employee had work-related contact with anyone
who exhibited signs and symptoms of COVID-19.
    Since 1971, under OSHA's recordkeeping system, employers have been
making work-relatedness determinations regarding workplace fatalities,
injuries, and illnesses. In general, employers are in the best position
to obtain information, both from the employee and the workplace,
necessary to make a work-relatedness determination. Although employers
may rely on experts and healthcare professionals for guidance, the
determination of work-relatedness ultimately rests with the employer.
    Finally, OSHA wishes to emphasize that, under OSHA's recordkeeping
regulation at 29 CFR 1904, employers must record on the OSHA 300 log
each work-related fatality, injury, and illness reported to OSHA under
Sec.  1904.39. The work-relatedness determination for fatality and in-
patient hospitalization is no different than the requirement to
determine work-relatedness when entering fatalities, injuries and
illness on the OSH 300 log. Accordingly, the work-relatedness
determination for reporting COVID-19 fatalities and in-patient
hospitalizations is a determination that is already required to be made
by the employer.
II. Time Periods for Reporting COVID-19 Fatalities and In-Patient
Hospitalizations
    As noted above, under paragraph (k), employers must report each
work-related COVID-19 fatality or hospitalization to OSHA within the
specified timeframes based on when any agent or employee of the
employer becomes aware of the reportable event. For example, an
employer ``learns'' of a COVID-19 fatality or in-patient
hospitalization when a supervisor, receptionist, or other employee at
the company receives information from a family member or medical
professional about an employee fatality or in-patient hospitalization.
It is the employer's responsibility to ensure that appropriate
instructions and procedures are in place so that managers, supervisors,
medical personnel, as well as other employees or agents of the company,
who learn of an employee's death or in-patient hospitalization due to
COVID-19 know that the company must make a report to OSHA.
    Consistent with OSHA's regulation at 29 CFR 1904.39, the reporting
clock begins to run with the occurrence of the reportable event. Under
paragraph (k), in situations where the employer or the employer's agent
does not learn about the work-related COVID-19 fatality or in-patient
hospitalization right away, the employer must make the report to OSHA
within 8 hours for a fatality, or 24 hours for an in-patient
hospitalization, from the time the employer (or the employer's agent)
learns about the reportable event. For example, if an employee dies
from a work-related case of COVID-19 on Sunday at 6:00 a.m., but the
employer does not learn about the death until Monday at 8:00 a.m., the
employer has until 4:00 p.m. that day to make the report to OSHA.
Similarly, if an employee is in-patient hospitalized for a work-related
case of COVID-19 at 8:30 p.m. on Monday, but the employer or the
employer's agent(s) does not learn about the hospitalization until 9:00
a.m. the next day (Tuesday), then the employer would be required to
make the report to OSHA within 24 hours of learning of the in-patient
hospitalization

(i.e., by 9:00 a.m. on Wednesday) (see 29 CFR 1904.39(b)(7)).
    Likewise, if an employer does not learn right away that a
reportable fatality or in-patient hospitalization is work-related, the
employer must make the report to OSHA within 8 hours or 24 hours of
learning that the death or in-patient hospitalization was the result of
a work-related COVID-19 exposure. For example, if an employee is in-
patient hospitalized for a case of COVID-19 at 9:00 a.m. on Monday, but
the employer does not have enough information to make a work-
relatedness determination until 11:00 a.m. on Monday, then the employer
would be required to report the hospitalization within 24 hours of
learning that the hospitalization was work-related (i.e., by 11:00 a.m.
on Tuesday) (see 29 CFR 1904.39(b)(8)).
    Finally, if an employer makes a report to OSHA concerning a work-
related COVID-19 in-patient hospitalization and that employee
subsequently dies from the illness, the employer does not need to make
an additional fatality report to OSHA.
III. How To Report COVID-19 Fatalities and In-Patient Hospitalizations
and What Information Must Be Included in the Report
    Paragraph (k)(2) of the standard provides that when reporting work-
related COVID-19 fatalities and in-patient hospitalizations to OSHA in
accordance with paragraph (k)(1), the employer must follow the
requirements in 29 CFR 1904.39, except for 29 CFR parts 1904.39(a)(1)-
(2) and (b)(6). As explained above, OSHA has included specific
provisions for the reporting of work-related COVID-19 fatalities and
in-patient hospitalizations that differ from 29 CFR 1904.39. However,
when making COVID-19 fatality and in-patient hospitalization reports to
OSHA, employers must follow the other reporting procedures set forth in
Sec.  1904.39. Specifically, under Sec.  1904.39(a)(3), employers have
three options for reporting work-related fatalities and in-patient
hospitalizations to OSHA:
    1. By telephone to the OSHA Area Office that is nearest to the site
of the incident;
    2. by telephone to the OSHA toll-free central telephone number, 1-
800-321-OSHA (1-800-321-6742);
    3. by electronic submission using the reporting application located
on OSHA's public website at www.osha.gov.
    Section 1904.39(a)(3) also allows employers to report work-related
fatalities and in-patient hospitalizations to OSHA in person to the
OSHA Area Office that is nearest to the site of the incident. However,
because many OSHA Area Offices are closed to the public during the
COVID-19 pandemic, employers must use one of the three options listed
above. In addition, Sec.  1904.39(b)(1) makes clear that, if the OSHA
Area Office is closed, an employer may not report a work-related
fatality or in-patient hospitalization by leaving a message on OSHA's
answering machine, faxing the Area Office, or sending an email.
Instead, the employer must make the report by using the 800 number or
the reporting application located on OSHA's public website at
www.osha.gov.
    The other provisions in 29 CFR 1904.39 (except for 29 CFR
1904.39(a)(1)-(2) and (b)(6)) also apply to the reports required by
paragraph (k). For example, employers should consult 29 CFR
1904.39(b)(2) to determine what information employers must give to OSHA
when making COVID-19 fatality or in-patient hospitalization reports.
Per that provision, employers must give OSHA the following information
for each fatality or in-patient hospitalization: The establishment
name, the location of the work-related incident, the time of the work-
related incident, the type of reportable event (i.e., fatality or in-
patient hospitalization), the number of employees who suffered a
fatality or in-patient hospitalization, the names of the employees who
suffered a fatality or in-patient hospitalization, the employer's
contact person and his or her phone number, and a brief description of
the work-related incident.

References

Centers for Disease Control and Prevention. (2020, May 20).
Reporting and Coding Deaths Due to COVID-19. https://www.cdc.gov/nchs/covid19/coding-and-reporting.htm. (CDC, May 20, 2020).
Pappas, S. (2020, May 19). How COVID-19 Deaths are Counted.
Scientific American. https://www.scientificamerican.com/article/how-covid-19-deaths-are-counted1/. (Pappas, May 19, 2020).

L. Availability of Records

    Section 8(c)(1) of the Act requires employers to ``make, keep and
preserve, and make available to the Secretary [of Labor] or the
Secretary of Health and Human Services, such records regarding his
activities relating to this Act as the Secretary, in cooperation with
the Secretary of Health and Human Services, may prescribe by regulation
as necessary or appropriate for the enforcement of this Act or for
developing information regarding the causes and prevention of
occupational accidents and illnesses.'' Section 8(c)(2) of the Act
specifically directs the Secretary of Labor to promulgate regulations
requiring employers to maintain accurate records of work-related
injuries and illnesses. Section 8(c)(3) of the Act requires employers
to ``maintain accurate records of employee exposures to potentially
toxic materials or harmful physical agents which are required to be
monitored or measured under section 6 [of the Act.]'' In accordance
with section 8(c), paragraph (l) of the ETS includes availability of
records requirements for certain COVID-19-related records required to
be created and maintained by the ETS. This paragraph provides a right
of access to records by employees, employee representatives, and OSHA.
    Paragraph (l)(1) specifies that the employer must make available,
for examination and copying, the individual COVID-19 vaccine
documentation and any COVID-19 test results required by the ETS for a
particular employee to that employee and to anyone having written
authorized consent of that employee by the end of the next business day
after a request. Prompt employee access to this information ensures
that employees have the information necessary to take an active role in
their employers' efforts to prevent COVID-19 transmission in the
workplace. In particular, in circumstances where employers or employees
choose to have the employee's COVID-19 test results go directly to the
employer, paragraph (l)(1) gives the employee access to their own
records. Access to COVID-19 test results may be helpful for a
requesting employee in evaluating information relevant to COVID-19
exposure, including if that exposure occurred at the workplace. Prompt
production of these records can also assist employees in making
personal medical decisions and seeking care from a licensed healthcare
provider if necessary.
    Employers should note that employee privacy is protected under the
access to records provisions in paragraph (l)(1). Specifically, as
noted above, paragraph (l)(1) requires employers to provide access to
the vaccination records or COVID-19 test results for a particular
employee to that employee or to anyone having that employee's written
permission. However, it does not authorize employers to allow anyone
other than the particular employee to access their records or results
without the written consent of that employee (except as provided for
under paragraph (l)(3)).
    Paragraph (l)(2) requires the employer to make the following
information available to an employee or an

employee representative on request: (1) The aggregate number of fully
vaccinated employees at a workplace and (2) the total number of
employees at that workplace. This information must be made available to
these individuals by the end of the next business day after a request.
Employers will be able to utilize the roster of each employee's
vaccination status they are required to maintain under paragraph (e)(4)
of this section to provide this information promptly to a requester.
    Since the aggregate totals of fully vaccinated employees and total
employees made available by request in paragraph (l)(2) do not contain
any personal identifiable information or personal medical information,
OSHA does not believe that access to these records raises any serious
confidentiality or privacy concern if disclosed to employees or their
representatives.
    OSHA believes that access to this information will allow employees
and employee representatives to calculate a percentage of fully
vaccinated employees at a workplace, evaluate the efficacy of the
employer's vaccination policy, raise any concerns identified to OSHA,
and actively participate in the employer's vaccination efforts. Without
the provision of this information to employees and their
representatives, the only potential check on whether the employer is
complying with the requirements of the ETS would be OSHA inspections.
The agency believes that making this information available to employee
representatives will help ensure compliance with the requirements of
the ETS and thereby protect workers.
    Consistent with 29 CFR 1904.35(a)(3), OSHA interprets the term
``employee'' as used in paragraph (l) to include former employees. In
addition, for purposes of paragraph (l)(2), the term ``representative''
is intended to have the same meanings as in 29 CFR 1904.35(b)(2), which
encompasses two types of employee representatives. The first is a
personal representative of the employee, who is a person the employee
designates, in writing, as his or her personal representative, or is a
legal representative of a deceased or legally incapacitated employee.
The second is an authorized representative, which is defined as an
authorized collective bargaining agent of one or more employees working
at the employer's worksite. In accordance with these interpretations,
OSHA also interprets the phrase ``employee representative,'' as used in
paragraph (l)(2), to include the personal and authorized
representatives of former employees. These interpretations are limited
to these provisions.
    Under paragraphs (l)(1) and (l)(2), requesters are entitled to one
free copy of each requested record, which is consistent with OSHA's
recordkeeping regulation at 29 CFR 1904.35. The cost of providing one
free copy to employees, former employees, and/or their representatives
is minimal, and these individuals are more likely to access the records
if it is without cost. Allowing the employer to charge for a copy of
the record would only delay the production of the information. After
receiving an initial, free copy of a requested record or document, an
employee, former employee, or representative may be charged a
reasonable fee for copying duplicative records. However, no fee may be
charged for an update to a previously requested record. It should be
noted that each COVID-19 test is a separate record, and, as such, the
employee or the representative is entitled to one free copy of each
COVID-19 test record.
    Paragraph (l)(3) provides OSHA with a specific right of access.
Under paragraph (l)(3)(i), employers must provide the written policy
required by paragraph (d), and the aggregate numbers described in
paragraph (l)(2) of this section (both the aggregate number of fully
vaccinated employees at a workplace and the total number of employees
at that workplace), to the Assistant Secretary for examination and
copying within 4 business hours of a request. Consistent with the
requirements in 29 CFR 1904.40(b)(2), if the records are maintained at
a location in a different time zone, the employer may use the business
hours of the establishment at which the records are located when
calculating the deadline.
    Providing OSHA with prompt access to the written policy and the
aggregate numbers allows the agency to more rapidly focus inspections
on employers that may not be in compliance with the requirements of
this ETS. In addition, this information will help OSHA determine what
to focus on in an investigation. For example, if an employer has
established, implemented, and is enforcing a written mandatory
vaccination policy under paragraph (d)(1) and their aggregate numbers
indicate that their entire workforce is fully vaccinated against COVID-
19, the agency might approach the investigation differently than in a
workplace where the employer's written policy (under paragraph (d)(2))
allows employees to provide proof of regular testing for COVID-19 in
accordance with paragraph (g) and wear a face covering in accordance
with paragraph (i), instead of being fully vaccinated. This information
also provides OSHA representatives with the ability to quickly check
any vaccination claims made by an employer without undertaking an
employee-by-employee assessment and assists OSHA representatives in
their evaluation of the effectiveness of the employer's written policy.
    Having this information within 4 business hours of the request
helps the agency act more quickly to protect employees and preserves
agency resources. In addition, the 4-hour response time is consistent
with similar obligations under other OSHA recordkeeping requirements,
such as the recordkeeping requirement in 29 CFR 1904.40(a).
    Paragraph (l)(3)(ii) requires employers to provide all other
records and other documents that are required to be maintained by this
section to the Assistant Secretary for examination and copying by the
end of the next business day after a request. This means that employers
must allow OSHA representatives to examine and copy each employee's
COVID-19 vaccine documentation (required to be maintained under
paragraph (e)(4)), the roster of employee vaccination status (required
to be maintained under paragraph (e)(4)), and each employee's COVID-19
test results (required to be maintained under paragraph (g)(4)), upon
request.
    As indicated in paragraph (c), the term Assistant Secretary
includes the Assistant Secretary's designees. Consequently, the records
and information required to be provided to the Assistant Secretary
under paragraph (l)(3) must be given to the Assistant Secretary or
their representatives, such as OSHA's Compliance Safety and Health
Officers.
    As noted above, section 8 of the OSH Act recognizes OSHA's right of
access to records relating to employer compliance with occupational
safety and health standards and regulations, including access to
relevant employee medical records. OSHA does not believe that its
inspectors need to obtain employee permission to access and review
personally identifiable information. Gaining this permission would
essentially make it impossible to obtain full access to the records in
a timely manner, which is needed by OSHA to perform a meaningful
workplace investigation. OSHA also has policies and procedures in place
to ensure the privacy and confidentiality of employee records it
accesses during inspections. Finally, without complete and timely
access to the vaccine and testing

records, agency efforts to conduct immediate interventions to ensure
employees are protected from COVID-19 at a specific workplace would be
limited.
    OSHA does not prescribe specific methods for requests for records
in this ETS. Employees, employee representatives, and the Assistant
Secretary and designees can submit requests in any manner that provides
adequate notice of the request to the employer. This may include
requests by in writing (e.g., email, fax, letter), by phone, or in
person.

M. Dates

    To minimize transmission of COVID-19 in the workplace, it is
essential that employers ensure that the provisions of this ETS are
implemented as quickly as possible, but no later than the dates
outlined in paragraph (m). This paragraph sets forth the effective date
of the section and the compliance dates for specific requirements of
the standard. The effective date for this ETS, as required by section
6(c)(1) of the OSH Act (29 U.S.C. 655(c)(1)), is the date of
publication in the Federal Register. The compliance date for all
provisions in the ETS is 30 days after the effective date, except for
paragraph (g) (COVID-19 testing for employees who are not fully
vaccinated), which requires compliance within 60 days of the effective
date. Given the grave danger to employees from occupational exposure to
COVID-19, as previously described, the effective date and compliance
dates provided for this ETS are reasonable and appropriate.
    For over a year and a half--since at least January 2020, when the
Secretary of Health and Human Services declared COVID-19 to be a public
health emergency for the entire United States--all employers have been
made acutely aware of the importance of minimizing employees' exposure
to COVID-19 and many have willingly joined the global response to stop
the spread of COVID-19 and to protect their employees. Therefore, many
employers have already been encouraging their employees to get
vaccinated against COVID-19. Many employers have also instituted
vaccination mandates (see Technological Feasibility, Section IV.A. of
this preamble, for more information).
    OSHA has published this ETS because there is great urgency in
instituting the workplace protections OSHA has found to be necessary as
quickly as possible. Unvaccinated workers are being hospitalized with
COVID-19 every day, and many are dying, so it is particularly critical
to remove obstacles as soon as possible for those who wish to be
vaccinated. At the same time, OSHA has set the compliance dates to
allow enough time for employers to obtain and read the standard, become
knowledgeable about the standard's requirements, and undertake the
necessary steps for compliance.
    OSHA anticipates that employers will be able to implement measures
to comply with most provisions of the ETS well within 30 days, pursuant
to paragraph (m)(2)(i). Even in situations where an employer has not
previously taken the required actions to address COVID-19 hazards in
the workplace, steps such as developing a vaccination policy,
determining employee vaccination status, providing support for employee
vaccination, ensuring employees who are not fully vaccinated wear face
coverings, and most other measures required under the standard can
readily be completed within the 30-day time period. These measures do
not require extensive lead times for large employers to implement. The
scope of the standard is limited to employers with more than 100
employees largely because OSHA is especially confident that these
employers will have the ability to implement the standard.
    Paragraph (m)(2)(ii) of the ETS provides a longer period of time--
60 days--for employers to comply with the requirements for COVID-19
testing in paragraph (g). Paragraph (g) requires employers to implement
COVID-19 testing and reporting of results for employees who are not
fully vaccinated. One reason for this extended period of time for
testing is that employers may need additional time to develop policies
and procedures regarding COVID-19 testing and associated recordkeeping.
    Perhaps more critically, this ETS is intended to incentivize
vaccination, so this delayed compliance date was established to allow
sufficient time for employees to complete a COVID-19 primary
vaccination before it is necessary to comply with the testing
requirements in paragraph (g). The 60-day compliance period in
paragraph (m)(2)(ii) provides employees with sufficient time to receive
one dose of a single-dose primary vaccination (e.g., Janssen (Johnson &
Johnson)) or both doses of a two-dose primary vaccination series (e.g.,
Pfizer-BioNTech, Moderna). For the Janssen COVID-19 vaccine, the
primary vaccination takes 1 day to complete (CDC, August 10, 2021).
Employees who receive the Janssen vaccine could therefore begin their
primary vaccination at any time up to and including the 60th day from
the date of publication in the Federal Register in order to be exempt
from the testing requirements of paragraph (g). For the Pfizer-BioNTech
COVID-19 vaccine, the primary vaccination series takes 21 days to
complete (CDC, August 25, 2021). Employees receiving the Pfizer-
BioNTech series could begin their primary vaccination series up to 39
days from the date of publication in the Federal Register. Finally, for
the Moderna COVID-19 vaccine, the primary vaccination series takes 28
days to complete (CDC, August 23, 2021). Employees receiving the
Moderna series could therefore begin their primary vaccination series
up to 32 days from the date of publication in the Federal Register.
    As specified in paragraph (m)(2)(ii), if an employee completes the
entire primary vaccination within 60 days following publication in the
Federal Register, that employee does not have to be tested under
paragraph (g), even if they have not yet completed the two week waiting
period that is required to meet the definition of fully vaccinated in
paragraph (c). Employers must begin compliance with the testing
requirements of paragraph (g) only for employees who have not yet
completed primary vaccination (i.e., employees who have not received
any doses, employees who have received only one dose of a two-dose
series) within 60 days from the date of publication in the Federal
Register. And because employers must have their vaccination support
processes (as required by paragraph (f)) in place before employees
would need to initiate their primary vaccination in time to avoid
testing under this section, employees will be able to avoid all testing
costs required by this ETS.
    Compliance with the requirements of the ETS within the specified
dates is achievable. Many employers are likely already in compliance
with at least some of the provisions of the ETS. Resources are also
readily available to help employers achieve compliance. These resources
include guidance issued by OSHA, the CDC, state and local governments,
trade associations, and other organizations to help employers
successfully implement vaccination, testing, and face covering
requirements to minimize the transmission of COVID-19 in the workplace.
OSHA therefore concludes that the compliance dates in this ETS strike a
reasonable balance between incentivizing vaccination and allowing
enough time for employers to comply.
    Although employers are not required to comply with the requirements
of this ETS until 30 days from the date of publication in the Federal
Register (60 days for paragraph (g)), OSHA strongly encourages
employers to implement the

required measures to support employee vaccination as soon as
practicable. Providing support for employees to receive the COVID-19
vaccine and recover from side effects, as required in paragraph (f) of
the ETS, prior to the compliance date may encourage employees to
receive a COVID-19 vaccination at the earliest possible date. This
would not only reduce the grave danger of COVID-19 in the workplace but
also reduce burdens on both employers and employees when the compliance
dates for the additional requirements for employees who are not fully
vaccinated arrive.

References

Centers for Disease Control and Prevention (CDC). (2021, August 10).
Janssen COVID-19 Vaccine (Johnson & Johnson). https://www.cdc.gov/vaccines/covid-19/info-by-product/moderna/index.html. (CDC, August
10, 2021)
Centers for Disease Control and Prevention (CDC). (2021, August 23).
Moderna COVID-19 Vaccine. https://www.cdc.gov/vaccines/covid-19/info-by-product/moderna/index.html. (CDC, August 23, 2021)
Centers for Disease Control and Prevention (CDC). (2021, August 25).
Pfizer-BioNTech COVID-19 Vaccine. https://www.cdc.gov/vaccines/covid-19/info-by-product/pfizer/index.html. (CDC, August 25, 2021)

N. Severability

    OSHA's amendment to its COVID-19 ETS, Part 1910, Subpart U,
includes a republication of Sec.  1910.505, Severability. Section
1910.505 contains a severability clause, the primary purpose of which
is to express OSHA's intent that if any section or provision of the
COVID-19 ETS is held invalid or unenforceable or is stayed or enjoined
by any court of competent jurisdiction, the remaining sections or
provisions should remain effective and operative. OSHA is including 29
CFR 1910.505 as part of this ETS for the same reasons the agency
included the provision in the Healthcare ETS, and OSHA intends for it
to have the same purposes and effects as those expressed in the
preamble to the Healthcare ETS (86 FR 32617-32618), which is hereby
included in the record for this ETS.
    Because subpart U is the result of two separate ETSs published at
different times and subject to different time frames, but OSHA intends
for both ETSs to be subject to the same principles of severability,
OSHA has relied on the same centralized severability section for both
for efficiency. For the benefit of the reader and for administrative
convenience, this centralized severability section is located in the
same subpart as the other provisions of the ETS. While either ETS
remains in effect, it is OSHA's intent that 29 CFR 1910.505 remain in
subpart U and operative as to either ETS still in effect. If both ETSs
are not made permanent, 29 CFR 1910.505 will cease to have effect along
with the rest of subpart U. If either ETS is made permanent, OSHA will
provide notice at that time of the agency's intended application of 29
CFR 1910.505 to the newly permanent standard. For example, if 29 CFR
1910.502 becomes permanent because it has been finalized, but 29 CFR
1910.501 remains a temporary requirement because it is not yet
finalized, 29 CFR 1910.505 would remain in subpart U and operative as
to 29 CFR 1910.501 and the agency would separately provide notice of
how severability is intended to apply to the newly permanent 29 CFR
1910.502.

O. Incorporation by Reference

    OSHA's amendment to its COVID-19 ETS, Part 1910, Subpart U,
includes the addition of Sec.  1910.501, Vaccination, Testing, and Face
Coverings. This section incorporates by reference CDC's ``Isolation
Guidance.''
    This document, listed below, will be fixed in time and made
publicly available. OSHA had previously incorporated this same document
into 29 CFR 1910.502 and listed it in subpart U's incorporation by
reference (IBR) section, 29 CFR 1910.509. Because subpart U is the
result of two separate ETSs published at different times and subject to
different time frames, but both incorporate documents by reference,
OSHA has relied on the same centralized IBR section for both. For the
benefit of the reader and for administrative convenience, this
centralized IBR section is located in the same subpart as the other
provisions of the ETS.
    While either ETS remains in effect, it is OSHA's intent that 29 CFR
1910.509 remain in subpart U. If both ETSs are not made permanent, 29
CFR 1910.509 will cease to have effect along with the rest of subpart
U. If either ETS is made permanent, OSHA intends to recodify the
relevant standards for that ETS from 29 CFR 1910.509 into 29 CFR
1910.6, the centralized IBR section for part 1910. For example, if 29
CFR 1910.502 becomes permanent because it has been finalized, but 29
CFR 1910.501 remains a temporary requirement because it is not yet
finalized, OSHA would relocate all of 29 CFR 1910.502's incorporated
documents into 29 CFR 1910.6, but 29 CFR 1910.509 would remain in
subpart U and would list the one document incorporated by reference
into 29 CFR 1910.501.
    In this section, OSHA includes a list of the titles, editions/
versions, and years of the incorporated documents. Stakeholders may
consult 29 CFR 1910.509 both to locate all of the documents
incorporated by reference in subpart U (the paragraph in which the
document is incorporated is listed there) and to find more details
regarding how to locate the specific consensus standard and guidelines
that have been incorporated by reference in the ETS.
    OSHA recognizes that the Centers for Disease Control and Prevention
(CDC) may update their guidelines based on the most current available
scientific evidence, but OSHA is only requiring compliance with CDC's
``Isolation Guidance'' as incorporated by reference, which is fixed in
time as of February 18, 2021.
    As discussed in the preamble of the Healthcare ETS at 86 FR 32619,
CDC's guidance, including its ``Isolation Guidance,'' is not expressed
in mandatory terms. As such, OSHA has determined it is not sufficiently
protective or a meaningful alternative to a mandatory standard. OSHA
has reviewed this guidance and determined that compliance with the
safety measures and specific instructions in CDC's ``Isolation
Guidance'' is important to protect workers who work for employees with
over 100 employees. For the same reasons as described in the Healthcare
ETS (86 FR 32619), OSHA is incorporating this guidance by reference,
and compliance with the recommendations will be mandatory. OSHA will be
able to cite employers who do not follow them. Compliance with all
applicable provisions of the incorporated document is required where
the provisions into which they are incorporated are mandatory, whether
the incorporated document sets out its directions in mandatory language
or recommendations. OSHA recognizes that this document incorporated by
reference into the ETS may become outdated when newer versions are
published or other entities revise those documents. In that case, OSHA
will work quickly to update the ETS through a new rulemaking or issue
enforcement guidance, as appropriate. But OSHA also has a longstanding
de minimis enforcement policy to allow employers to rely on documents
that are at least as protective.
    OSHA is incorporating by reference (in 29 CFR 1910.509) the
material below. A brief description of the guidance is provided in the
text below. A description of its use can be found in the Regulatory
Text, and Summary and Explanation (Section VI. of this

preamble), where the guidance is referenced.
Regulatory Text--Sec. Sec.  1910.501(h); 1910.502(l)
    CDC's Isolation Guidance (2021): This guidance provides steps to
take when someone is experiencing COVID-19 symptoms and/or tested
positive for COVID-19. This document is available at www.osha.gov/coronavirus/ets/ibr.
    The CDC document is available at no cost through the contact
information listed above. In addition, in accordance with Sec.
1910.509(a)(1), this guidance is available for inspection at any
Regional Office of the Occupational Safety and Health Administration
(OSHA), or at the OSHA Docket Office, U.S. Department of Labor, 200
Constitution Avenue NW, Room N-3508, Washington, DC 20210; telephone:
202-693-2350 (TTY number:<PHONE_NUMBER>). Due to copyright issues, OSHA
cannot post consensus standards on the OSHA website or through
www.regulations.gov.

List of Subjects

29 CFR Part 1910

    COVID-19, Disease, Health, Health care, Health facilities,
Incorporation by reference, Occupational safety and health, Public
health, Quarantine, Reporting and recordkeeping requirements,
Respirators, SARS-CoV-2, Telework, Vaccines, Viruses.

29 CFR Parts 1915, 1917, 1918, 1926, and 1928

    COVID-19, Disease, Health, Health care, Health facilities,
Occupational safety and health, Public health, Quarantine, Reporting
and recordkeeping requirements, Respirators, SARS-CoV-2, Telework,
Vaccines, Viruses.

Authority and Signature

    James S. Frederick, Acting Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, authorized
the preparation of this document pursuant to the following authorities:
Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970
(29 U.S.C. 653, 655, 657); Secretary of Labor's Order 8-2020 (85 FR
58393 (Sept. 18, 2020)); 29 CFR part 1911; and 5 U.S.C. 553.

James S. Frederick,
Acting Assistant Secretary of Labor for Occupational Safety and Health.

    For the reasons set forth in the preamble, chapter XVII of title 29
of the Code of Federal Regulations is amended as follows:

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

Subpart U--COVID-19

0
1. Revise the heading for Subpart U to read as set forth above.

0
2. The authority citation for subpart U continues to read as follows:

    Authority:  29 U.S.C. 653, 655, and 657; Secretary of Labor's
Order No. 8-2020 (85 FR 58393); 29 CFR part 1911; and 5 U.S.C. 553.

0
3. Add Sec.  1910.501 to subpart U to read as follows:

Sec.  1910.501  Vaccination, testing, and face coverings.

    (a) Purpose. This section is intended to establish minimum
vaccination, vaccination verification, face covering, and testing
requirements to address the grave danger of COVID-19 in the workplace,
and to preempt inconsistent state and local requirements relating to
these issues, including requirements that ban or limit employers'
authority to require vaccination, face covering, or testing, regardless
of the number of employees.

    Note 1 to paragraph (a): This section establishes minimum
requirements that employers must implement. Nothing in this section
prevents employers from agreeing with workers and their
representatives to additional measures not required by this section
and this section does not supplant collective bargaining agreements
or other collectively negotiated agreements in effect that may have
negotiated terms that exceed the requirements herein. The National
Labor Relations Act of 1935 (NLRA) protects the right of most
private-sector employees to take collective action to improve their
wages and working conditions.

    (b) Scope and application. (1) This section covers all employers
with a total of 100 or more employees at any time this section is in
effect.
    (2) The requirements of this section do not apply to:
    (i) Workplaces covered under the Safer Federal Workforce Task Force
COVID-19 Workplace Safety: Guidance for Federal Contractors and
Subcontractors; or
    (ii) Settings where any employee provides healthcare services or
healthcare support services when subject to the requirements of Sec.
1910.502.
    (3) The requirements of this section do not apply to the employees
of covered employers:
    (i) Who do not report to a workplace where other individuals such
as coworkers or customers are present;
    (ii) While working from home; or
    (iii) Who work exclusively outdoors.
    (c) Definitions. The following definitions apply to this section.
    Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, or designee.
    COVID-19 (Coronavirus Disease 2019) means the disease caused by
SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2). For
clarity and ease of reference, this section also uses the term ``COVID-
19'' when describing exposures or potential exposures to SARS-CoV-2.
    COVID-19 test means a test for SARS-CoV-2 that is:
    (i) 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);
    (ii) Administered in accordance with the authorized instructions;
and
    (iii) 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.
    Face covering means a covering that:
    (i)(A) completely covers the nose and mouth;
    (B) Is made with two or more layers of a breathable fabric that is
tightly woven (i.e., fabrics that do not let light pass through when
held up to a light source);
    (C) Is secured to the head with ties, ear loops, or elastic bands
that go behind the head. If gaiters are worn, they should have two
layers of fabric or be folded to make two layers;
    (D) Fits snugly over the nose, mouth, and chin with no large gaps
on the outside of the face; and
    (E) Is a solid piece of material without slits, exhalation valves,
visible holes, punctures, or other openings.
    (ii) This definition includes clear face coverings or cloth face
coverings with a clear plastic panel that, despite the non-cloth
material allowing light to pass through, otherwise meet this definition
and which may be used to facilitate communication with people who are
deaf or hard-of-hearing or others who need to see a speaker's mouth or
facial expressions to understand speech or sign language respectively.
    Facemask means a surgical, medical procedure, dental, or isolation
mask that is FDA-cleared, authorized by an FDA EUA, or offered or
distributed as

described in an FDA enforcement policy. Facemasks may also be referred
to as ``medical procedure masks.''
    Fully vaccinated means:
    (i) A person's status 2 weeks after completing primary vaccination
with a COVID-19 vaccine with, if applicable, at least the minimum
recommended interval between doses in accordance with the approval,
authorization, or listing that is:
    (A) Approved or authorized for emergency use by the FDA;
    (B) Listed for emergency use by the World Health Organization
(WHO); or
    (C) Administered as part of a clinical trial at a U.S. site, if the
recipient is documented to have primary vaccination with the active
(not placebo) COVID-19 vaccine candidate, for which vaccine efficacy
has been independently confirmed (e.g., by a data and safety monitoring
board) or if the clinical trial participant at U.S. sites had received
a COVID-19 vaccine that is neither approved nor authorized for use by
FDA but is listed for emergency use by WHO; or
    (ii) A person's status 2 weeks after receiving the second dose of
any combination of two doses of a COVID-19 vaccine that is approved or
authorized by the FDA, or listed as a two-dose series by the WHO (i.e.,
a heterologous primary series of such vaccines, receiving doses of
different COVID-19 vaccines as part of one primary series). The second
dose of the series must not be received earlier than 17 days (21 days
with a 4-day grace period) after the first dose.
    Mandatory Vaccination Policy is an employer policy requiring each
employee to be fully vaccinated. To meet this definition, the policy
must require: Vaccination of all employees, including vaccination of
all new employees as soon as practicable, other than those employees:
    (i) For whom a vaccine is medically contraindicated;
    (ii) For whom medical necessity requires a delay in vaccination; or
    (iii) Who are legally entitled to a reasonable accommodation under
federal civil rights laws because they have a disability or sincerely
held religious beliefs, practices, or observances that conflict with
the vaccination requirement.
    Respirator means a type of personal protective equipment (PPE) that
is certified by the National Institute for Occupational Safety and
Health (NIOSH) under 42 CFR part 84 or is authorized under an EUA by
the FDA. Respirators protect against airborne hazards by removing
specific air contaminants from the ambient (surrounding) air or by
supplying breathable air from a safe source. Common types of
respirators include filtering facepiece respirators (e.g., N95),
elastomeric respirators, and powered air purifying respirators (PAPRs).
Face coverings, facemasks, and face shields are not respirators.
    Workplace means a physical location (e.g., fixed, mobile) where the
employer's work or operations are performed. It does not include an
employee's residence.
    (d) Employer policy on vaccination. (1) The employer must
establish, implement, and enforce a written mandatory vaccination
policy.
    (2) The employer is exempted from the requirement in paragraph
(d)(1) of this section only if the employer establishes, implements,
and enforces a written policy allowing any employee not subject to a
mandatory vaccination policy to choose either to be fully vaccinated
against COVID-19 or provide proof of regular testing for COVID-19 in
accordance with paragraph (g) of this section and wear a face covering
in accordance with paragraph (i) of this section.

    Note 1 to paragraph (d): Under federal law, including the
Americans with Disabilities Act (ADA) and Title VII of the Civil
Rights Act of 1964, workers may be entitled to a reasonable
accommodation from their employer, absent undue hardship. If the
worker requesting a reasonable accommodation cannot be vaccinated
and/or wear a face covering because of a disability, as defined by
the ADA, the worker may be entitled to a reasonable accommodation.
In addition, if the vaccination, and/or testing for COVID-19, and/or
wearing a face covering 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 for disability or sincerely
held religious belief, employers should consult the Equal Employment
Opportunity Commission's regulations, guidance, and technical
assistance including at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

    (e) Determination of employee vaccination status. (1) The employer
must determine the vaccination status of each employee. This
determination must include whether the employee is fully vaccinated.
    (2) The employer must require each vaccinated employee to provide
acceptable proof of vaccination status, including whether they are
fully or partially vaccinated. Acceptable proof of vaccination status
is:
    (i) The record of immunization from a health care provider or
pharmacy;
    (ii) A copy of the COVID-19 Vaccination Record Card;
    (iii) A copy of medical records documenting the vaccination;
    (iv) A copy of immunization records from a public health, state, or
tribal immunization information system; or
    (v) A copy of any other official documentation that contains the
type of vaccine administered, date(s) of administration, and the name
of the health care professional(s) or clinic site(s) administering the
vaccine(s);
    (vi) In instances where an employee is unable to produce acceptable
proof of vaccination under paragraphs (e)(2)(i) through (v) of this
section, a signed and dated statement by the employee:
    (A) Attesting to their vaccination status (fully vaccinated or
partially vaccinated);
    (B) Attesting that they have lost and are otherwise unable to
produce proof required by this section; and
    (C) Including the following language: ``I declare (or certify,
verify, or state) that this statement about my vaccination status is
true and accurate. I understand that knowingly providing false
information regarding my vaccination status on this form may subject me
to criminal penalties.''

    Note 1 to paragraph (e)(2)(vi): An employee who attests to their
vaccination status should, to the best of their recollection,
include the following information in their attestation: The type of
vaccine administered; date(s) of administration; and the name of the
health care professional(s) or clinic site(s) administering the
vaccine(s).

    (3) Any employee who does not provide one of the acceptable forms
of proof of vaccination status in paragraph (e)(2) of this section to
the employer must be treated as not fully vaccinated for the purpose of
this section.
    (4) The employer must maintain a record of each employee's
vaccination status and must preserve acceptable proof of vaccination
for each employee who is fully or partially vaccinated. The employer
must maintain a roster of each employee's vaccination status. These
records and roster are considered to be employee medical records and
must be maintained as such records in accordance with Sec.  1910.1020
and must not be disclosed except as required or authorized by this
section or other federal law. These records and roster are not subject
to the retention requirements of Sec.  1910.1020(d)(1)(i) but must be
maintained and preserved while this section remains in effect.
    (5) When an employer has ascertained employee vaccination status
prior to the effective date of this section through another form of
attestation or proof, and retained records of that ascertainment,

the employer is exempt from the requirements in paragraphs (e)(1)
through (3) of this section only for each employee whose fully
vaccinated status has been documented prior to the effective date of
this section. For purposes of paragraph (e)(4) of this section, the
employer's records of ascertainment of vaccination status for each such
person constitute acceptable proof of vaccination.
    (f) Employer support for employee vaccination. The employer must
support COVID-19 vaccination as described in this paragraph.
    (1) Time for vaccination. The employer must:
    (i) Provide a reasonable amount of time to each employee for each
of their primary vaccination dose(s); and
    (ii) Provide up to 4 hours paid time, including travel time, at the
employee's regular rate of pay for this purpose.
    (2) Time for recovery. The employer must provide reasonable time
and paid sick leave to recover from side effects experienced following
any primary vaccination dose to each employee for each dose.
    (g) COVID-19 testing for employees who are not fully vaccinated.
(1) The employer must ensure that each employee who is not fully
vaccinated complies with paragraph (g)(1)(i) or (ii) of this section:
    (i) An employee who reports at least once every 7 days to a
workplace where other individuals such as coworkers or customers are
present:
    (A) Must be tested for COVID-19 at least once every 7 days; and
    (B) Must provide documentation of the most recent COVID-19 test
result to the employer no later than the 7th day following the date on
which the employee last provided a test result.
    (ii) An employee who does not report during a period of 7 or more
days to a workplace where other individuals such as coworkers or
customers are present (e.g., teleworking for two weeks prior to
reporting to a workplace with others):
    (A) Must be tested for COVID-19 within 7 days prior to returning to
the workplace; and
    (B) Must provide documentation of that test result to the employer
upon return to the workplace.

    Note 1 to paragraph (g)(1): This section does not require the
employer 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. This section also does not
prohibit the employer from paying for costs associated with testing
required by paragraph (g)(1) of this section.

    (2) If an employee does not provide documentation of a COVID-19
test result as required by paragraph (g)(1) of this section, the
employer must keep that employee removed from the workplace until the
employee provides a test result.
    (3) 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 as
required under paragraph (g) of this section for 90 days following the
date of their positive test or diagnosis.
    (4) The employer must maintain a record of each test result
provided by each employee under paragraph (g)(1) of this section or
obtained during tests conducted by the employer. These records are
considered to be employee medical records and must be maintained as
such records in accordance with Sec.  1910.1020 and must not be
disclosed except as required or authorized by this section or other
federal law. These records are not subject to the retention
requirements of Sec.  1910.1020(d)(1)(i) but must be maintained and
preserved while this section remains in effect.
    (h) Employee notification to employer of a positive COVID-19 test
and removal. Regardless of COVID-19 vaccination status or any COVID-19
testing required under paragraph (g) of this section, the employer
must:
    (1) Require each employee to promptly notify the employer when they
receive a positive COVID-19 test or are diagnosed with COVID-19 by a
licensed healthcare provider; and
    (2) Immediately remove from the workplace any employee who receives
a positive COVID-19 test or is diagnosed with COVID-19 by a licensed
healthcare provider and keep the employee removed until the employee:
    (i) Receives a negative result on a COVID-19 nucleic acid
amplification test (NAAT) following a positive result on a COVID-19
antigen test if the employee chooses to seek a NAAT test for
confirmatory testing;
    (ii) meets the return to work criteria in CDC's ``Isolation
Guidance'' (incorporated by reference, Sec.  1910.509); or
    (iii) Receives a recommendation to return to work from a licensed
healthcare provider.

    Note 1 to paragraph (h)(2): This section does not require
employers to provide paid time to any employee for removal as a
result of a positive COVID-19 test or diagnosis of COVID-19;
however, paid time may be required by other laws, regulations, or
collective bargaining agreements or other collectively negotiated
agreements.

    (i) Face coverings. (1) The employer must ensure that each employee
who is not fully vaccinated wears a face covering when indoors and when
occupying a vehicle with another person for work purposes, except:
    (i) When an employee is alone in a room with floor to ceiling walls
and a closed door.
    (ii) For a limited time while the employee is eating or drinking at
the workplace or for identification purposes in compliance with safety
and security requirements.
    (iii) When an employee is wearing a respirator or facemask.
    (iv) Where the employer can show that the use of face coverings is
infeasible or creates a greater hazard that would excuse compliance
with this paragraph (e.g., when it is important to see the employee's
mouth for reasons related to their job duties, when the work requires
the use of the employee's uncovered mouth, or when the use of a face
covering presents a risk of serious injury or death to the employee).
    (2) The employer must ensure that any face covering required to be
worn by this section:
    (i) Is worn by the employee to fully cover the employee's nose and
mouth; and
    (ii) Is replaced when wet, soiled, or damaged (e.g., is ripped, has
holes, or has broken ear loops).
    (3) The employer must not prevent any employee from voluntarily
wearing a face covering or facemask unless the employer can demonstrate
that doing so would create a hazard of serious injury or death, such as
interfering with the safe operation of equipment.
    (4) The employer must permit the employee to wear a respirator
instead of a face covering whether required or not. In addition, the
employer may provide respirators to the employee, even if not required.
In such circumstances, the employer must also comply with Sec.
1910.504.
    (5) The employer must not prohibit customers or visitors from
wearing face coverings.

    Note 1 to paragraph (i)(5): Nothing in this section precludes
employers from requiring customers or visitors to wear face
coverings.

    Note 1 to paragraph (i): Face shields may be worn in addition to
face coverings to prevent them from getting wet and soiled.

    Note 2 to paragraph (i): This section does not require the
employer to pay for any costs associated with face coverings;
however employer payment for face coverings may be required by other
laws, regulations, or collective bargaining agreements or other
collectively negotiated agreements. This section also does not
prohibit the employer

from paying for costs associated with face coverings required by
this section.

    (j) Information provided to employees. The employer must inform
each employee, in a language and at a literacy level the employee
understands, about:
    (1) The requirements of this section as well as any employer
policies and procedures established to implement this section;
    (2) COVID-19 vaccine efficacy, safety, and the benefits of being
vaccinated, by providing the document, ``Key Things to Know About
COVID-19 Vaccines,'' available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html;
    (3) The requirements of 29 CFR 1904.35(b)(1)(iv), which prohibits
the employer from discharging or in any manner discriminating against
an employee for reporting a work-related injuries or illness, and
section 11(c) of the OSH Act, which prohibits the employer from
discriminating against an employee for exercising rights under, or as a
result of actions that are required by, this section. Section 11(c)
also protects the employee from retaliation for filing an occupational
safety or health complaint, reporting a work-related injuries or
illness, or otherwise exercising any rights afforded by the OSH Act;
and
    (4) The prohibitions of 18 U.S.C. 1001 and of section 17(g) of the
OSH Act, which provide for criminal penalties associated with knowingly
supplying false statements or documentation.
    (k) Reporting COVID-19 fatalities and hospitalizations to OSHA. (1)
The employer must report to OSHA:
    (i) Each work-related COVID-19 fatality within 8 hours of the
employer learning about the fatality.
    (ii) Each work-related COVID-19 in-patient hospitalization within
24 hours of the employer learning about the in-patient hospitalization.
    (2) When reporting COVID-19 fatalities and in-patient
hospitalizations to OSHA in accordance with paragraph (j)(1) of this
section, the employer must follow the requirements in 29 CFR part
1904.39, except for 29 CFR part 1904.39(a)(1) and (2) and (b)(6).
    (l) Availability of records. (1) By the end of the next business
day after a request, the employer must make available, for examination
and copying, the individual COVID-19 vaccine documentation and any
COVID-19 test results for a particular employee to that employee and to
anyone having written authorized consent of that employee.
    (2) By the end of the next business day after a request by an
employee or an employee representative, the employer must make
available to the requester the aggregate number of fully vaccinated
employees at a workplace along with the total number of employees at
that workplace.
    (3) The employer must provide to the Assistant Secretary for
examination and copying:
    (i) Within 4 business hours of a request, the employer's written
policy required by paragraph (d) of this section, and the aggregate
numbers described in paragraph (l)(2) of this section; and
    (ii) By the end of the next business day after a request, all other
records and other documents required to be maintained by this section.
    (m) Dates--(1) Effective date. This section is effective as of
November 5, 2021.
    (2) Compliance dates. (i) Employers must comply with all
requirements of this section, except for requirements in paragraph (g)
of this section, by December 6, 2021.
    (ii) Employers must comply with the requirements of this section in
paragraph (g) by January 4, 2022, but 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.

0
4. Amend Sec.  1910.504 by revising paragraph (a) to read as follows:

Sec.  1910.504  Mini Respiratory Protection Program.

    (a) Scope and application. This section applies only to respirator
use in accordance with Sec. Sec.  1910.501(i)(4) and 1910.502(f)(4).
* * * * *

0
5. Republish Sec.  1910.505 to read as follows:

Sec.  1910.505  Severability.

    Each section of this subpart U, and each provision within those
sections, is separate and severable from the other sections and
provisions. If any provision of this subpart is held to be invalid or
unenforceable on its face, or as applied to any person, entity, or
circumstance, or is stayed or enjoined, that provision shall be
construed so as to continue to give the maximum effect to the provision
permitted by law, unless such holding shall be one of utter invalidity
or unenforceability, in which event the provision shall be severable
from this subpart and shall not affect the remainder of the subpart.

0
6. Amend Sec.  1910.509 by revising paragraph (b)(5) to read as
follows:

Sec.  1910.509  Incorporation by reference.

* * * * *
    (b) * * *
    (5) Isolation Guidance. COVID-19: Isolation If You Are Sick;
Separate yourself from others if you have COVID-19, updated February
18, 2021, IBR approved for Sec. Sec.  1910.501(h) and 1910.502(l).
* * * * *