Federal OSHA Issues “Vaccine or Test” Emergency Temporary Standard for Large Employers
On November 4, 2021, the federal Occupational Safety and Health Administration (OSHA) issued its long-awaited Emergency Temporary Standard (ETS) requiring all employers with at least 100 employees to ensure that their workers are fully vaccinated against COVID-19 or submit to weekly COVID-19 testing. This ETS—which affects over 80 million private-sector workers—constitutes one of the boldest steps taken by the Biden administration to help end the COVID-19 pandemic.
The ETS provides covered employers with two pathways for compliance: (1) Require vaccination for all employees unless the employee qualifies for a medical or religious exemption (employees with an exemption must participate in at least once-weekly testing and wear face coverings); or (2) Provide employees with the option/choice of either showing proof of vaccination status or participating in at least once-weekly testing.
Key takeaways from the ETS include:
- Who is covered? Private employers with 100 or more employees firm- or corporate-wide for the six months the ETS is in place are covered. The 100-employee count includes fully remote workers and part-time employees, but does not include independent contractors.
- Who is not covered? Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS; workplaces of employers who have fewer than 100 employees in total; and some public employers.
- If an employer is covered by the ETS, does that mean all of its employees must follow the provisions of the ETS? No. The requirements of the ETS do not apply to employees who do not report to a workplace where other individuals are present, employees who work exclusively from home or employees who work exclusively outdoors.
- When does this go into effect? All requirements other than testing (December 4, 2021); Testing requirement (January 4, 2022).
- What does the ETS require employers to do? Under the ETS, covered employers must:
- Develop, implement, and enforce a mandatory COVID-19 vaccination policy. There is an exception for employers that establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
- Determine the vaccination status of each employee, obtain proof of vaccination, maintain records and a roster of each employee’s vaccination status.
- Support vaccination by providing employees reasonable time, including up to four (4) hours of paid time above and beyond available sick or PTO time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.
- Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer).
- Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
- Immediately remove from the workplace any employee, regardless of vaccination status, who tests positive for COVID-19 or is diagnosed with COVID-19 by a healthcare provider, and keep the employee out of the workplace until return to work criteria are met.
- Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
- 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.
- Report work-related COVID-19 fatalities to OSHA within eight hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
- Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.
Employers should consult with experienced human resources professionals and/or labor and employment counsel with questions regarding the OSHA ETS. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers’ Association
*This Alert is provided for general informational purposes only and does not constitute legal advice.