We’ve been anticipating it for months, and it’s finally here.  The OSHA Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing has arrived, and if they haven’t already, employers need to begin preparing NOW.

This ETS applies to all companies employing 100 or more workers “that are under OSHA’s authority and jurisdiction.”  However, OSHA also stated that they will take time to study this ETS and eventually create guidance for companies with fewer than 100 employees.  The ETS states that “all employers that have a total of at least 100 employees firm- or corporate-wide, at any time the ETS is in effect, are covered.”

The ETS is effective immediately upon publication in the Federal register, which is scheduled to occur on November 5, 2021.  Thirty days after publication, all requirements of the ETS, except for testing of unvaccinated employees, will be enforced.  All requirements will be enforced upon 60 days after publication, or January 4, 2022.  You can download the regulations here (warning: it is quite lengthy!).

Employers are required to create an enforce COVID-19 vaccination policy or policy that requires employees to undergo weekly COVID testing and wear a face covering at the workplace.  Employers are required to: (1) gather proof of employee vaccination status, and (2) support vaccination by providing employees up to four hours of paid time to receive each vaccination dose and time to recover from the side effects of vaccination for each dose.

Regarding testing, the ETS requires employers to ensure that each employee who is not fully vaccinated is tested at least weekly, or within seven days before returning to work if gone from work for a week or longer.  Employers are NOT required to pay any costs associated with the testing of employees, unless required to do so by other laws, regulations or collectively negotiated agreements.  Employers can also volunteer to pay for the testing on their own (it’s expensive!).  Employer policies must state employees are required to notify them when they receive a positive COVID test and must require removal of the employee from the workplace, whether vaccinated or not, upon notice of the positive test result.

On top of these requirements, there are requirements for both posting of information and providing information to OSHA.  Employers must provide policies and procedures under the ETS; a CDC document regarding COVID-19 vaccines, information about protection against retaliation and discrimination, and information about providing false vaccine information to their employees.  Employers must provide OSHA with reports of work-related COVID-19 fatalities within eight hours, and work-related COVID hospitalizations within 24 hours.

The ETS was announced some time ago, and there are no real surprises in the ETS.  Regarding local governments, the ETS states:

Under section 18(c)(2) of the OSH Act, State Plans are required to adopt and enforce occupational safety and health standards that are at least as effective as federal OSHA’s requirements. Id. section 667(c)(2). In addition, the OSH Act requires that State Plans must cover State and local government employees (including, e.g., State and local school systems within the scope of this rule), even though federal OSHA does not have coverage over such employees in States without OSHA-approved State Plans.

Once OSHA promulgates an ETS, OSHA’s regulations provide that those States have “30 days after the date of promulgation of the Federal standard to adopt a State emergency temporary standard,” or to demonstrate “that promulgation of an emergency temporary standard is not necessary because the State standard is already the same or at least as effective as the Federal standard change.” 29 CFR § 1953.5(b)(1).

States are required to adopt and enforce OSHA standards that are at least as effective as federal requirements, and must cover state and local government entities.  We will keep our eyes peeled for the upcoming Minnesota plan for vaccine enforcement.  Until then, we recommend that all employers work towards the creation of policies and programs for adhering to the upcoming regulations.  If you, or your organization need assistance in complying with federal or state regulations, contact Wiley Reber Law, for workplace advice that works.