OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard Released

Please note: The U.S. Court of Appeals for the Fifth Circuit granted an injunction delaying enforcement of the COVID-19 ETS after an emergency hearing on November 6th. We have updated information on this following blog: OSHA’s COVID-19 Emergency Temporary Standard in the Courts – What Companies Need to Know

In September, President Joe Biden announced his COVID-19 plan for the nation. Part of that announcement was that OSHA would be establishing an emergency temporary standard (ETS) requiring employers to implement a vaccine program if they had over 100 employees. On November 4, 2021, the final version of this standard was released.

This ETS applies to all employers who have 100 or more employees on November 5, 2021 or later while the standard is still in place. The requirements for these employers are to:

Implement a COVID-19 vaccination policy that requires mandatory vaccination or allows employees to either get vaccinated or undergo weekly COVID-19 testing.
Determine vaccination status of each employee, obtain proof of vaccination, maintain records of each employee’s vaccination status and a roster of each employee’s vaccination status.
Support vaccination by providing up to 4 hours of paid time to receive each dose and up to 2 days to recover from side effects from each dose.
Ensure employees who aren’t fully vaccinated are tested at least weekly if in the workplace, or within 7 days before entering the workplace. The ETS does not require employers to pay for any costs associated with testing.
Ensure employees who are not fully vaccinated wear a face covering when indoors or when occupying a vehicle with another person for work purposes.
Require employees to promptly provide notice when they receive a positive COVID-19 test result or are diagnosed with COVID-19. Employees who have received a positive test or diagnosis must be immediately removed from the workplace and remain removed until the return to work criteria is met.
Provide employees with information about the requirements of ETS, the company policy, info on vaccine efficacy, protections against retaliation and laws on knowingly supplying false information.
Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization.
Employers are required to comply with most of these provisions within 30 days of the initial publication which puts the due date at December 5, 2021. For employers who opt to allow for the weekly testing option, the testing does not need to begin until 60 days after publication which is January 4, 2022. As indicated in the name, this is a “temporary” standard, but OSHA anticipates it being in place for at least 6 months.

Here are a few common questions regarding these new rules:

Q. Which employees are included in my count to determine if I am over 100 and have to comply?

A. The count is done at the employer level (firm- or corporate-wide), not by individual location. It would apply for any employer with 100 employees at one location or across multiple locations.
When counting employees, companies need to include all remote employees, part-time employees, temporary and seasonal employees that are directly employed, and minors. The count does not include independent contractors or temporary employees leased from a third-party (staffing agency).

Q. How does this standard apply to the healthcare industry?

A. OSHA published a specific Healthcare Emergency Temporary Standard in June 2021. Since that rule was tailored to that industry, OSHA has indicated that any healthcare facility who has to comply with the Healthcare ETS does not have to comply with this new general ETS. However, the Centers for Medicare & Medicaid Services published their own rule on November 4 which mirrors these requirements as a condition of participation.

Q. What if I’m in a state that has an OSHA-approved State Plan?

A. States with State OSHA Plans have 30 days to adopt this new standard. At a minimum, it must be what is in the standard, but states have the option to put more stringent rules in place. Once adopted, employers in those states will likely have an additional 30 days to implement these requirements. The list of states with OSHA-approved State Plans is on OSHA’s site here: https://www.osha.gov/stateplans/.

The full text of the OSHA standard can be found here: https://www.osha.gov/coronavirus/ets2. In addition to the regulatory text, within the site OSHA has also provided policy templates (for mandatory and testing options), fact sheets and resources for finding vaccination sites and reasonable accommodations.

If you have any questions specific to your organization, please reach out to your Assurance Safety Advocate.

ABOUT THE AUTHOR

Lauren Gizzi

Lauren Gizzi is the Vice President of Safety at Assurance with more than ten years of industry experience. An expert in safety programming and risk management, she works closely with our clients and Safety Advocates to establish effective safety programs that achieve measurable results. Lauren attended Roosevelt University and has received the following designations: Associate in Risk Management (ARM), Associate in Claims (AIC), Construction Risk and Insurance Specialist (CRIS) and Associate in General Insurance (AINS).