OSHA released its long-awaited Emergency Temporary Standard (ETS)
As somewhat predicted, OSHA released its long-awaited Emergency Temporary Standard (ETS) on protecting employees from the COVID-19 virus. The ETS requires employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either 1) be vaccinated or 2) undergo regular COVID-19 testing and wear a face covering at work. Note: Remote employees are included in the count toward 100 but are not required to be included in the vaccination/testing policy.
All the provisions except for those involving testing are effective December 6, 2021. The testing requirements are effective January 4, 2022.
Employers must pay for time off to receive a vaccine and deal with side effects in addition to any other time off. Employers need not, however, pay for time off for testing or if employees are removed from the workplace for testing positive or having symptoms. Nor do employers need to pay for face coverings.
The ETS requirements will be in effect for six months, at which time OSHA must decide whether to proceed with a permanent rulemaking process. Note: The ETS serves as a proposed rule for such a final standard. States with approved OSHA plans, such as California and Washington, must adopt similar requirements.
Many parties have signaled plans to challenge the ETS either through the courts or through legislation. Employers should pay close attention to the status.
OSHA did try to combat some of these preemptively by including language in the ETS that says states or municipalities may not override the ETS by enacting bans or limits on employers’ authority to require vaccination, face covering, or testing.
The ETS covers:
- Private employers with 100 or more employees firm- or corporate-wide.
- In states with OSHA-approved State Plans, state-and local-government employers, as well as private employers, with 100 or more employees will be covered by state occupational safety and health requirements.
Note: The ETS does not cover:
- Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors; and
- Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (§ 1910.502).
In addition to creating the vaccination/testing policy, employers must also:
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status. Without proof of vaccination, employees are not considered fully vaccinated.
- Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer). Home testing is allowed only if observed by the employer or an authorized telehealth proctor.
- Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria. Employers need not pay employees for this time off.
- Treat testing records as “medical records,” which means they must be retained for the duration of employment plus 30 years, in most cases.
- Upon request, provide OSHA with the aggregate number of fully vaccinated employees at the workplace, along with the total number of employees at that workplace within four hours of a request.
- Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
- Report work-related COVID-19 hospitalizations within 24 hours of learning about them, and report work-related fatalities within 8 hours of learning about them. Note: Unlike the general serious injury reporting requirement, reporting is not limited by time of exposure and the time of hospitalization or fatality. Employers are required to report a COVID-19 in-patient hospitalization or fatality that occurs at any time after a work-related incident (i.e., exposure).
- Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
Employers may request accommodations
Employees may request medical or religious accommodations from the vaccination or testing requirements. Employers are to consider such requests on a case-by-case basis, per the Americans with Disabilities Act (medical) and Title VII of the Civil Rights Act (religious).
This is one of the most broad-reaching OSHA rules ever published. It is also one of the more controversial. However, unless the courts or Congress step in, employers will need to comply with the applicable requirements. Given the nature of the rule, employers should start sooner rather than later crafting their policies and plans for implementation.
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