On November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) applicable to large employers of 100 or more employees aimed at encouraging vaccinations and protecting employees from the grave danger of employees contracting COVID-19 in the workplace. Employers have the duty under the OSH Act to provide safe workplaces to their employees, including protecting employees from known hazards by complying with occupational safety and health standards.
This ETS applies to employers in all industries covered by the OSH Act and targets unvaccinated workers in any indoor work setting where more than one person is present. This ETS will apply to workplaces that are as diverse as schools, restaurants, retail settings, offices, prisons, and factories. However, this ETS does not apply in settings where any employee provides healthcare services or healthcare support services while they are covered by the requirements of OSHA’s prior COVID-19 rule pertaining to healthcare workers. Moreover, this ETS does not apply to workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidelines for Federal Contractors and Subcontractors.
The ETS will be published in the Federal Register and become effective on November 5, 2021. To comply, employers must ensure that provisions are addressed in the workplace by the following dates: (1) 30 days after publication: all requirements other than testing for employees who have not completed their entire primary vaccination doses; and (2) 60 days after publication: testing for employees who have not received all doses required for a primary vaccination.
While the ETS takes effect immediately, it also serves as a proposal under the OSH Act for a final standard. OSHA is seeking comment on all aspects of this ETS and how it would be adopted as a final standard. OSHA is continuing to assess the impact of this standard on employers with fewer than 100 employees. Stakeholders are invited to submit comments at www.regulations.gov. Moreover, resources, such as Questions and Answers and compliance guidance related to this ETS are available at www.osha.gov/coronavirus.
Set forth below are the key highlights of the ETS with full highlights found below.
Mandatory Vaccination Policy: OSHA has identified vaccination as the single most efficient and effective means for removing an unvaccinated worker from the grave danger of contacting COVID-19. Although this ETS does not impose a strict vaccination mandate, OSHA has determined that, to adequately address the grave danger that COVID-19 poses to unvaccinated workers, a more proactive approach is necessary than simply requiring employers to make vaccination available to employees.
Employer Requirements for Alternative Testing/Face Covering Policy: Only employers who decline to implement a mandatory vaccination program are required by the rule to assume the administrative burden necessary to ensure that unvaccinated workers are regularly tested for COVID-19 and wear face coverings when they work near others.
Employer Policy Requirements: After determining the policy, an employer must ensure that it is following the policy, as laid out in its written plan. Employers must ensure that they enforce the requirements of their policies with respect to their workforce, through training and the use of mechanisms, such as work rules and the workplace disciplinary system, if necessary.
Employer Pay and Leave Obligations: Where there is a mandatory vaccination policy, ETS requires all covered employers to provide employees with reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from vaccination side effects following each dose.
Determining Whether Employer Has 100 Employees: For the threshold coverage applicable to 100 employees, employers must include all employees across their U.S. locations, regardless of employees’ vaccination status or where they perform their work. Part-time employees count towards the employer total, but independent contractors do not.
Exemptions for Certain Employees of Covered Employers: Even where the standard applies to a particular employer, its requirements do not apply to employees who (1) do not report to a workplace where other individuals, such as co-workers or customers are present; (2) while working from home; or (3) who work exclusively outdoors.
Reporting Obligations: The ETS requires employers to (1) require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; (3) keep removed employees out of the workplace until they meet criteria for returning to work.
Record-Keeping Obligations: The ETS requires employers to make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee. Employers are required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
Preemption of State and Local Laws: OSHA intends the ETS to address comprehensively the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19. This ETS is intended to preempt States and political subdivisions of States, from adopting and enforcing workplace requirements relating to these issues, except under the authority of a Federally-approved State Plan. OSHA intends to preempt any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing.