As of November 8, 2021
The Department of Labor’s Occupational Safety and Health Administration (OSHA) issued the anticipated COVID-19 Emergency Temporary Standard (ETS) to cover employers with 100 or more employees. This ETS requires those employees to be vaccinated against COVID-19 by January 4, 2022 or undergo weekly testing. Although a federal appeals court has temporarily blocked the ETS, employers should use this time to plan and prepare for implementation, while litigation is pending.
What we know so far:
• Employees not vaccinated by January 4th must produce a negative test at least weekly and be masked.
• The ETS does not require employers to pay for the tests, though, it does require employers to pay for time for employees to get vaccinated.
• The ETS does not apply to employees who:
o Don’t report to a workplace where others work, or customers are present;
o Work only from home; or
o Work exclusively outdoors.
• Employers are required to have a written policy.
• Employers also must report COVID-19 fatalities and hospitalizations to OSHA.
• The ETS provided limited exemptions from the vaccination requirement for employees:
o When a vaccine is contraindicated;
o For whom medical necessity requires a delay in vaccination; or
o Who are legally entitled to a reasonable accommodation under federal civil rights laws because of a disability or sincerely held religious beliefs, practices or observances that conflict with the vaccination requirement.
• Employers must inform employees of the ETS’ requirements and any policies and procedures used to implement the ETS.
• Note that the 100-employee threshold is calculated company-wide, not per worksite.
• Employers who don’t comply with the requirements may face significant OSHA fines (a maximum fine of $13,653 per violation.)
• Legal challenges to the ETS are expected.
Note: Certain federal contractors and subcontractors are subject an Executive Order vaccine mandate which has different requirements and does not allow for weekly testing, as an alternative.