Editor’s Note: After this magazine went to press, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on Nov. 5, 2021 in the Federal Register. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” In the event that the current litigation is unsuccessful, we are publishing the original article below for your information. Watch www.awci.org/media for updates.
Nov. 19 update.
The U.S. Department of Labor’s Occupational Safety and Health Administration announced on Nov. 4 a new emergency temporary standard to protect more than 84 million workers from the spread of the coronavirus on the job. The nation’s unvaccinated workers face grave danger from workplace exposure to coronavirus, and immediate action is necessary to protect them, the department says.
Under this standard, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
The emergency temporary standard covers employers with 100 or more employees—firm or company-wide—and provides options for compliance. The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
The ETS also requires employers to do the following:
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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.
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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.
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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).
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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.
The emergency temporary standard 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.
OSHA is offering robust compliance assistance to help businesses implement the standard, including a webinar, frequently asked questions and other compliance materials on www.osha.gov.
The ETS covers two-thirds of the nation’s private-sector workforce. In the 26 states and two territories with OSHA State Plans, the ETS also covers public sector workers employed by state and local governments.
The ETS became effective Nov. 5 when it was published in the Federal Register. Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication.
The ETS also serves as a proposal for normal rulemaking for a final standard. OSHA is seeking comment on all aspects of this ETS and whether the agency should adopt it as a final standard.
