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OSHA COVID-19 Vaccination and Testing ETS

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.

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