OSHA’S Emergency Temp Standard For COVID 

(November 4, 2021)

The Occupational Safety and Health Administration (OSHA) has just issued its Interim Final Rule for an Emergency Temporary Standard (ETS) designed to protect unvaccinated employees of large employers (100 or more employees) with respect to COVID-19.

Under the ETS, covered employers are required to develop, implement, and enforce a written mandatory COVID-19 vaccination policy (with certain exceptions), unless the employer adopts a written policy in which employees may either be fully vaccinated or regularly tested for COVID-10 and wear a face covering in most situations when they work near other individuals. Thus, in the words of OSHA, covered employers have “a choice in how to comply.”

The ETS excludes employees in healthcare who are otherwise covered by the Healthcare ETS issued by OSHA in June 2021 (29 CFR 1910.502), as well as employees who telework and/or who do not report to the workplace where others are present, as well as employees who work exclusively outside. OSHA does not exclude from the ETS coverage those individuals previously infected with COVID-19, because OSHA considers that those if those employees are not yet fully vaccinated, they are still at a “grave danger” from COVID-19 exposure. The ETS provisions do not apply to workplaces covered under the COVID Guidance for Federal Contractors and Subcontractors.

In determining coverage, employers must include “all employees across all of their U.S. locations,” including part-time employees; however, independent contractors are not included. In scenarios in which employees of a staffing agency are placed at a host location, only the staffing agency would count the jointly employed workers for purposes of the 100-employee threshold. The host employer however would still be covered by the ETS if it has 100 or more employees in addition to the employees of the staffing agency. The determination for coverage is made as of the effective date of the standard, which is November 5, 2021 (see further discussion below) and as long as the ETS is in effect.

The ETS requires covered employers to determine and maintain a record of each employee’s vaccination status, as well as a roster of each employee’s vaccination status. The ETS also recognizes that under federal law (the ADA and Title VII of Civil Rights Act of 1964) workers may be entitled to a reasonable accommodation with respect to the vaccination policy, absent undue hardship, based on disability/medical or for religious reasons.

Employer “support” to employees to get vaccinated comes in the form of required paid leave of up to four (4) hours for employees to get each of the vaccine doses and “a reasonable time and paid sick leave” to recover from vaccine side effects.

With respect to employees who are not fully vaccinated, provided they are to report at least once every seven days to a workplace where other individuals (coworker/customers) are present, covered employers must ensure that those employees are (1) tested for COVID-19 at least once every seven days; and (2) provide documentation to the employer of the test result no later than the seventh day following the date on which the employee last provided a test result. The ETS does not require employers to pay for any costs associated with testing, but such payment may be required pursuant to other laws, regulations, or collective-bargaining agreements.

Under the ETS, employers must report to OSHA any COVID-19 related fatalities within 8 hours of the employer learning about the fatality and must report each work-related COVID-19 inpatient hospitalization within 24 hours of learning of the hospitalization.

Lastly, employers are required to inform “each employee, in a language … the employee understands” of the ETS requirements and the employer’s policies.

The effective date of the ETS is November 5, 2021; however, the compliance date requiring employers to comply with all of the requirements of the ETS is 30 days after publication (December 5, 2021). With respect to COVID-19 testing for employees who are not fully vaccinated (i.e., Section G), the compliance date is 60 days after the publication date (January 4, 2022).

The standard has just been announced. Employers with questions about specific provisions or about issues in their industry should consult employment counsel. In addition, we anticipate providing further guidance in the near future.