OSHA Announces ETS To Enforce Vaccine/Testing Mandates for Employers with 100+ Employees

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard (ETS) to enforce President Joe Biden’s COVID-19 vaccine/testing mandate for employers with 100 or more employees. The ETS, which impacts 1.9 million private-sector employers and more than 84 million workers, provides a framework for employers to either implement and enforce a policy that requires employees to receive COVID-19 vaccinations or a policy that allows employees to choose between vaccination and regular COVID-19 testing and mask wearing. OSHA is accepting comments on the ETS until December 6, 2021, and several states have indicated they will challenge the rule in court. 

Which Employers Are Covered

The ETS applies to employers with 100 or more employees companywide, even if they work in many different locations. All employees – including remote workers, part-time workers and minors – are counted for purposes of determining whether the company meets the 100-employee threshold. Independent contractors are not included in the employee tally.

The ETS does not cover employers that are subject to separate vaccine mandates for federal contractors and subcontractors or healthcare employers that participate in Medicare and Medicaid programs. 

What Covered Employers Must Do

The ETS took effect November 5, 2021 and will be enforced by OSHA beginning January 4, 2022. All covered employers must take the following steps: 

• Determine the vaccination status of each employee. This includes obtaining acceptable proof of vaccination from employees and maintaining records and a roster of each employee’s vaccination status.
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status, until they meet required criteria for a safe return.

• Ensure that each worker who is not fully vaccinated gets tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer).
• Require unvaccinated employees to wear face coverings when indoors (in most circumstances) or when occupying a vehicle with another person for work purposes.

Employer Costs

Employers that are covered by the ETS are required to provide paid time off for workers to get vaccinated and to provide a reasonable amount of sick leave for employees who need to recover from vaccine side effects. However, OSHA does not require employers to pay for weekly COVID-19 tests for unvaccinated workers. Some businesses may be required to cover the test costs depending on their state and local laws and collective bargaining agreements.

Limited Exceptions to Vaccine Mandates

Employers who institute a mandatory vaccine policy (without the testing option) are required by federal laws to make exceptions for individuals for whom the vaccine is medically contraindicated or who have sincerely held religious beliefs, practices or observations that conflict with the vaccine requirement. These individuals will be required to be tested every week and, in most cases, to wear a face covering while at work.

Remote Workers

Remote workers who work exclusively from home do not have to comply with the regulation. However, if an unvaccinated employee has been teleworking and then must go into the office where other workers will be present, that worker must receive a COVID-19 test within seven days before coming to the office. Employees who work exclusively outdoors also do not have to comply with the mandate.

Deadlines

OSHA says employers must comply with many ETS requirements by December 5, 2021. These include collecting information on employee vaccination status, requiring that unvaccinated workers wear masks, and choosing whether their policy will require vaccinations or provide a testing option. 

By January 4, 2022, employers must ensure that all employees who are required to be vaccinated are, in fact, fully vaccinated. Those employers that provide a testing option must ensure that unvaccinated employees have begun testing by this date. 

The ETS considers an individual to be fully vaccinated two weeks after receiving their second dose of a two-dose vaccine, such as Pfizer or Moderna, or two weeks after their one dose of a single-dose vaccine, such as Johnson & Johnson. 

If you have questions about the ETS or general OSHA compliance, or if you are looking to contest an OSHA citation or prepare for the OSHA inspection process, give us a call. The OSHA lawyers at Sheehy Ware and Pappas have deep expertise in OSHA matters ranging from compliance to OSHA lawsuits.