In early September, the White House directed the Occupational Safety and Health Administration (OSHA) to develop and issue an emergency temporary standard (ETS) mandating that employers with 100 or more employees require employees to be fully vaccinated or submit to weekly testing. On November 4, 2021, OSHA issued the final ETS to the public to minimize the risk of COVID-19 transmission in the workplace. Employers must comply with most provisions by 30 days after the date of publication in the Federal Register. Employers must comply with the testing requirements by 60 days after the date of publication in the Federal Register. The scheduled publication date is November 5, 2021. The details of how the ETS will affect employers are detailed below.

OSHA determined that the ETS applies to employers with 100 or more employees as those employers have the administrative capacity to implement the standard’s requirements promptly. 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. It is important to note that even if an employer is covered by the ETS, the requirements of the ETS do not apply to (i) employees who do not report to a workplace where other individuals are present; (ii) employees while working from home; and (iii) employees who work exclusively outdoors. 

The ETS lays out requirements that employers will need to follow. Employers need to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace. The ETS does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings. Additionally, employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. Employers should support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose. Also, employers must ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven (7) days before returning to work (if away from the workplace for a week or longer). If an employee receives a positive COVID-19 test or is diagnosed with COVID-19, they must promptly give notice to their employer. Any employee, regardless of vaccination status that receives a positive COVID-19 test or is diagnosed with COVID-19 needs to be immediately removed from the workplace and kept out of the workplace until return-to-work criteria are met. Importantly, any employee who is not fully vaccinated will need to wear a face-covering when indoors. 

Employers need to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization. Certain records will also need to be made available for examination and copying to an employee or an employee representative. 

Lastly, the ETS requires employers to provide employees the following in a language, and at a literacy level, the employees understand 

  1. information about the requirements of the ETS and workplace policies and procedures established to implement the ETS, 
  2. the CDC document “Key Things to Know About COVID-19 Vaccines”,
  3. information about protections against retaliation and discrimination, and 
  4. information about laws that provide for criminal penalties for knowingly supplying false statements or documentation. 

Should any employer have questions about the ETS and compliance therewith, please reach out to an attorney for guidance. The attorneys at BHGR are happy to help best navigate these standards. 

Occupational Safety and Health Administration OSHA. Vector illustration

Authors: Camille Joy DeCamp and Reyna Gonzalez

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