On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address the danger of COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS by Dec. 5, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firm- or company-wide count). State plans will have 30 days to adopt the federal ETS or implement their own vaccination standard. On Nov. 6, 2021, the 5th Circuit Court of Appeals issued a temporary stay effectively blocking enforcement of the ETS. However, compliance with the ETS is still required until a final decision is made.
The ETS requires employers to:
- Develop, implement and enforce a mandatory COVID-19 vaccination policy; or
- Create a policy allowing employees to choose to get a vaccination or wear a face covering in the workplace and have weekly COVID-19 testing done.
Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination and keep a roster of each employee’s vaccinations status. Employees who are not fully vaccinated must be tested weekly or within seven days before returning to work. Employers are also required to allow reasonable time—including up to four hours of paid time—to receive a primary vaccination dose.
The requirements of the ETS do not apply to:
- Employees who do not work with other individuals present;
- Employees when they are working from home;
- Employees who work exclusively outdoors;
- Those covered under the Safer Federal Workforce Task Force;
- Those covered by the health care ETS;
- Employers that have fewer than 100 employees; and
- Public employers in states without State plans.
WEEKLY TESTING REQUIREMENTS
Employees who are not fully vaccinated must be tested weekly or within seven days before returning to work. The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements.
Employers are also required to allow reasonable time—including up to four hours of paid time—to receive a primary vaccination dose. Reasonable time and paid sick leave are also required to recover from any side effects of the vaccination. Employees are required to provide immediate notice of a positive COVID-19 test or diagnosis, and will be removed immediately from work until return to work criteria are met.
In preparation for the release of this ETS, OSHA has created several useful resources for employers to help them better understand the new requirements. The full library of resources can be found on the OSHA COVID-19 Vaccination and Testing ETS webpage. Highlights of these resources include:
- A video webinar overview of the new requirements.
- ETS Fact Sheet
- Mandatory Vaccination Sample
- Frequently Asked Questions
Employers should carefully review the vaccination and testing ETS, implement and start enforcing the requirements. Employers should also continue to monitor OSHA communications so they can be updated on any changes or amendments to the ETS. Contact us to speak to a consultant if you have questions about more resources regarding these new requirements. Stay tuned for more relevant healthcare, compliance, and benefits news on our Twitter or LinkedIn.
This is a developing story. This page will be updated as more information is released.