OSHA Releases Emergency Temporary Standard (ETS) for COVD-19

by Mark Harrison

This Article Originally Appeared in the NFDA's Memorial Business Journal

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OSHA Releases Emergency Temporary Standard (ETS) for COVD-19

OSHA finally released its Emergency Temporary Standard (ETS) on protecting employees from the COVID-19 virus on November 4th. The ETS requires employers with 100 or more employees total 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

Remote employees are included in the count toward 100, but are not required to be included in the vaccination/testing policy.

Employers must pay for time off to receive a vaccine and deal with side effects. Employers do not need to pay for time off for testing; nor do they need to pay for face coverings.

Key Dates:

  • December 5, 2021: All the provisions except for those involving testing are effective
  • January 4, 2022: The testing requirements are effective
  • Duration: As an ETS, the requirements will be in effect for 6-months, at which time OSHA must decide whether to proceed with a permanent rulemaking process.

Will This Be Permanent?
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.

What Are The Legal Challenges?
Many groups and individuals have signaled plans to challenge the ETS either through the courts or through legislation. Employers should pay close attention to the status and their local regulations.

OSHA has already tried to combat some of these challenges preemptively by including language in the ETS that says states or municipalities cannot override the ETS by enacting bans or limits on employers’ authority to require vaccination, face covering, or testing.

What Employers Are Affected?

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.

What Employers Are Not Affected?

  • Private employers with less than 100 employees firm- or corporate-wide.
  • 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).

What Are The Major Requirements?

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.

What About Accommodations?
Employees may request medical or religious accommodations from the vaccination or testing requirements. Employers are urged to follow applicable guidance from the EEOC and legal counsel.

Conclusion
This is one of the most broad-reaching rules ever published by OSHA. Given the gravity of the ETS, employers should start sooner rather than later crafting their policies and plans for implementation and continue to pay attention to local regulators.

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Mark Harrison is the president of Certified Safety Training (CST), an Endorsed Provider of the NFDA and the leader in deathcare OSHA compliance. Backed by more than 30 years of industry experience and Certified Safety Professionals, CST matches industry expertise with customizable programming to make sure that customers have the highest-quality safety programs, plans, training, and advice. From bloodborne pathogens to hazard communications to personal protective equipment to dozens of other topics, CST’s Certified Safety Professionals have successfully helped thousands of employees work safer and smarter. CST is headquartered in Jacksonville, Florida. For more information, visit www.certifiedsafetytraining.org.

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