On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a new Emergency Temporary Standard on Vaccination and Testing (ETS). Two days later, the United States Court of Appeals for the Fifth Circuit paused implementation of the ETS, making the future of the ETS uncertain due to pending legal challenges.
However, the ETS remains in effect until a court rules otherwise, and employers may want to continue preparing for the ETS as it could take weeks of planning to comply with the ETS deadlines.
Key things you need to know
Who is affected?
The ETS applies to employers with at least 100 employees, on a company-wide basis, in all workplaces that are under OSHA’s authority and jurisdiction.
The ETS provides protections for employees who are unable to be vaccinated due to a disability or a sincerely held religious belief. The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.
What does it require?
Covered employers will be required to adopt a mandatory vaccination policy or require unvaccinated workers to undergo weekly testing and wear a face covering at work. Covered employers must provide paid time for workers to get the COVID-19 vaccine and ensure workers have paid sick leave to recover from any side effects that prevent them from working. Businesses that don’t comply may face significant OSHA fines – up to $14,000 per violation.
Specifically, the ETS requires covered employers to:
- Establish a policy on vaccination.
- Determine vaccination status of each employee, obtain acceptable proof of vaccination, and maintain records and roster of vaccination status.
- Provide support for employee vaccination (reasonable time, including up to 4 hours of paid time, to receive each vaccination dose, and paid sick leave to recover from side effects experienced following each dose).
- Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis.
- Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes.
- Employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard, e.g., interfering with the safe operation of equipment.
- Ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
- Employers are not required to pay for any costs associated with testing (check other state laws or collective bargaining agreements).
- Provide each employee information about the requirements of the ETS; workplace policies and procedures established to implement the ETS; vaccination efficacy, safety, and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation.
- Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 inpatient hospitalizations within 24 hours.
- Make certain records available for examination and copying (an employee’s COVID-19 vaccine documentation and any COVID-19 test results) to that employee and to anyone with written authorized consent of that employee and the aggregate number of fully vaccinated employees at workplace along with the total number of employees at that workplace.
When is it enforced?
Employers must comply with all requirements other than testing provisions by December 6, 2021, and comply with the testing requirement for employees who have not completed their entire primary vaccination dose(s) by January 4, 2022. Learn more about compliance dates here.
This ETS is in effect for six months or until OSHA finds a grave danger from the virus no longer exists for the covered workforce. OSHA can update the ETS, as appropriate, if new information indicates a change in measures is necessary to address the grave danger. After that, it must be adopted as a final standard to remain in effect.
Accordingly, if you have comments, feedback, or information on OSHA’s COVID-19 Vaccination and Testing ETS you would like the agency to consider, submit a comment electronically at regulations.gov (Docket Number OSHA-2021-0007).