OSHA’S Emergency Temporary Standard – Act Now

November 6, 2021 by

What Employers with 100+ Employees Need to Know Now

On November 4, 2021, the Occupational Safety and Health Agency (OSHA) filed the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) designed to minimize the risk of COVID-19 transmission in the workplace. Upon publication, the ETS became effective on November 5, 2021. The ETS establishes binding requirements to protect unvaccinated employees of large employers from the risk of contracting COVID-19 in the workplace. OSHA anticipates that the ETS will increase vaccination numbers by approximately 23 million individuals.

The challenges associated with ensuring safety in the workplace related to COVID are ongoing and guidance from lawmakers and governmental agencies remains a key component of employers’ strategies as they implement plans to protect their employees and the workplace.

ETS Highlights and Employer Requirements

The ETS preempts state and local laws and contemplates that employers will establish policies and procedures to implement its requirements, specifically that:

  • employers must establish and enforce a COVID-19 vaccination policy mandating vaccination or requiring weekly COVID-19 testing with a face-mask requirement for those electing to test instead of vaccinate;
  • employers must determine employee vaccination status;
  • employers must provide support to employees for vaccination (either time off, including paid time, for vaccination or related to sick leave to recover from side effects);
  • employers must ensure unvaccinated employees are tested for COVID-19 weekly if in the office once per week;
  • employers must maintain a mechanism for prompt notification of positive COVID-19 test and subsequent actions related to removal of employee from the workplace;
  • employers must ensure unvaccinated employees wear face masks indoor or when traveling in vehicles with another person for work purposes and prohibits imposition of non-mask policies;
  • employers must report to OSHA, within 8 hours of learning, any work-related COVID-19 fatalities;
  • employers must provide employees with information they can understand concerning the ETS, CDC guidance related to COVID-19 and information about laws concerning retaliation, discrimination and false statements; and
  • employers must make vaccination proof available to employee or authorized persons and must make available the total number of vaccinated employees in the workplace, including the number of all employees in that same workplace.

Employers must comply with many of the requirements within 30 days and begin required testing within 60 days of the November 5, 2021, effective date. The effective compliance date for providing time off for vaccination and face coverings for employees who are not fully vaccinated is December 5, 2021. Compliance with any vaccination portion of the ETS (or testing in lieu of vaccination portion) must occur on or before January 5, 2021.

The current ETS is not a final standard but rather a proposal under Section 6(b) of the OSH Act and comments are still being accepted and OSHA may still make changes to the current ETS based on COVID-19 trends.

The ETS was part of President Biden’s 6-pronged “Path Out of the Pandemic Covid-19 Action Plan” designed to steer America out of the pandemic. Although the ETS and related published materials generally assert that the ETS preempts states, and political subdivisions of states, from banning or limiting the published mandates set forth in the guidance, we anticipate a full onslaught of litigation on a myriad of issues associated with this ETS. Consequently, the future trajectory of this ETS may be uncertain as a result of potential legal challenges.

For further information on each of the requirements of covered employers, read this Lincoln Derr Article.

Employers Subject to the ETS

Impacted Employers. In general, the ETS applies whenever an employer has 100 or more employees. The ETS includes a series of FAQs that address the 100 or more employee threshold. The count should be done at the corporate-wide level and not an individual location level. OSHA provides the following example: “if a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.” Beyond that, all employees – whether working remotely, full-time, part-time, or seasonal, or whether working at a customer site – must be counted.

Exempt Employers. Employers already subject to the OSHA ETS for Health Care Employers (effective June 21, 2020), employers covered under Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors), employers subject to the Centers for Medicare & Medicaid Services (CMS) Health Care Staff Vaccination rule or employers subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors are exempt from the ETS. Additionally, employees who do not report to a workplace where other individuals (such as coworkers or customers) are present, employees who work from home, and employees who exclusively work outdoors are exempted under the ETS.

Lincoln Derr will continue to provide information and counsel related to notable developments. For now, covered employers should begin assessing their compliance obligations to meet the pending effective dates of the ETS. If you have any questions about this ETS or need assistance putting your compliance plan into place, please contact Gwendolyn W. Lewis.

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