OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard

On November 4, 2021, OSHA issued its Emergency Temporary Standard (ETS)  and a helpful FAQ detailing the federal mandatory vaccination and testing requirements for large employers across the country. The ETS is lengthy and detailed, but major highlights include the following:

  • Who: The mandatory vaccination and testing requirements apply to US employers with at least 100 employees firm or corporate-wide at any time the ETS is in effect (“covered employers”).
    • The ETS does not apply to workplaces already covered by Federal Workforce Task Force Guidance or federal contractors and subcontractors already covered under Executive Order 14042.
    • Even if their employer is covered, the ETS does not apply to employees who do not report to a workplace where other people are present, employees working from home, or employees who work exclusively outdoors.
  • When: The ETS is effective immediately upon its publication in the Federal Register on November 5, 2021. On or before December 5, 2021, employers must be in compliance with all ETS provisions (including requiring all unvaccinated employees to wear masks) other than weekly testing for employees who are not fully vaccinated. On or before January 4, 2022, employers must be in compliance with all ETS provisions, including requiring weekly testing for unvaccinated employees.
  • Key requirements: The ETS established minimum vaccination, vaccination verification, face covering, and testing requirements. Covered employers must do the following:
    • Develop, implement, and enforce a mandatory COVID-19 vaccination policy (or a policy allowing alternative weekly COVID-19 testing and masking). Provide written information about the ETS and related policies to all employees.
    • Determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
    • Provide employees reasonable time, including up to 4 hours of paid time, to receive vaccination doses, and reasonable time and paid sick leave to recover from possible side effects after each dose.
    • Require employees to receive the necessary shots to be fully vaccinated -- either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4, 2022.
    • In the alternative, ensure that each employee who is not fully vaccinated by January 4, 2022 is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from work for a week or more). Covered employers are not required to pay for such testing under the ETS, although they may be required to do so under other applicable laws or collective bargaining agreements. The ETS lists permissible tests upon which covered employers and employees may rely.
    • Require employees to immediately provide notice if they receive a positive COVID-19 test or are diagnosed with COVID-19, and immediately remove such employees from the workplace, keeping them out until they meet criteria for returning to work.
    • Require every employee who is not fully vaccinated to wear a face covering when indoors or in a vehicle with another person for work purposes.
    • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related in-patient hospitalizations within 24 hours of learning about them.

For additional information about complying with these new detailed ETS requirements, contact your partners at Lake Effect.

Lake Effect is here to answer your questions about federal, state, and local regulations that impact employers across all industries. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

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