Today, the Occupational Safety and Health Administration (OSHA) issued its much-anticipated emergency temporary standard (ETS) addressing COVID-19 vaccination and testing. Unlike other OSHA standards that count employees on an “establishment” basis, the ETS covers any private employer with 100 or more employees across the entire company. This broad definition is much more inclusive and will affect many more employers than many previous OSHA standards. Part-time, full-time, and remote employees are all included in the count. The new ETS applies to all employers with 100 or more employees except for those covered by the Executive Order on Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors and those covered by the Healthcare ETS.
While we undoubtedly expect that there will be legal challenges and possibly injunctions, the ETS contains certain requirements that covered employers should begin addressing immediately. First and foremost, covered employers must develop, implement, and enforce a policy to address the ETS: either a mandatory COVID-19 vaccination policy or a policy requiring employees to elect either to get vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
As part of a policy that complies with the ETS, employers must do each of the following:
- Determine the vaccination status of each of their employees, and collect proof of vaccination from vaccinated employees.
- Maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
- Provide employees up to four hours of paid time to get each dose of the vaccination.
- Provide reasonable time and paid sick leave for employees who receive the vaccine to recover from any side effects.
- Conduct weekly testing for employees who are not fully vaccinated (if an employee is not in the workplace during a week, he/she must be tested within seven days before returning to work).
- Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
- Immediately send home any employee, regardless of vaccination status, who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider.
- Establish criteria compliant with Centers for Disease Control and Prevention (CDC) guidelines for employees who are sent home due to a positive COVID-19 test to return to work, and allow those employees to return only once the criteria are met.
- Mandate that employees who are not fully vaccinated wear a face covering when indoors or occupying a vehicle with another person for work purposes.
- Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and about workplace policies and procedures established to implement the ETS.
- Provide each employee with information about vaccine efficacy, vaccine 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 and hospitalizations to OSHA where applicable.
- Make certain records available, for examination and copying, to an employee (and to anyone having the written authorized consent of that employee) or an employee representative.
This policy must be in effect by December 4. Employers must comply with the testing requirement by January 4.
The COVID-19 Vaccination and Testing ETS provides additional guidance on each aspect of the required policies described above. One notable provision of the ETS lists the wide variety of tests that comply, including supervised at-home testing and testing conducted by a staff member of the employer.
Importantly, the ETS does not require employers to pay for the weekly testing of an employee who is not fully vaccinated or to directly provide testing to any employees. However, employers should be aware of particular circumstances in which they may be required by other laws or collective bargaining agreements to pay for testing.
It is likely that the ETS will face legal challenges prior to its December 4 effective date, but unless and until the ETS is modified or struck down by a court, employers should take immediate steps to ensure compliance. Employers should begin developing policies now so they are finalized in advance of the effective date.