What Does the OSHA ETS for COVID-19 Mean for Your Business?

Latest Update – 1/14/2022:

On Thursday, January 13th, 2022, the US Supreme Court issued a stay of the OSHA ETS for COVID-19 vaccinations, testing, and masking via a 6-3 decision. Requirements for health care workers are not affected by the Supreme Court issued stay. To learn more about the decision and what this means for safety professionals, read this article by Safety + Health Magazine, a publication by the National Safety Council. 

 

Update – 12/17/2021:

A Biden administration rule that requires workers at companies with 100 or more employees to be vaccinated against COVID-19 or undergo weekly testing is back on. The ruling by the U.S. Sixth Circuit Court of Appeals in Cincinnati lifted a November injunction that had blocked the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS).

 

Steps to implement: OSHA said that it would not issue citations tied to the COVID-19 vaccination mandate before Jan. 10, so that companies have time to adjust to and implement the requirements. OSHA added that it would not issue citations before the listed dates “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

 

Several Petitioners have already appealed the ETS to the Supreme Court, citing the irreparable harm they would suffer if they had to enforce the mandate, based on labor shortages, unavailability of tests, and unintended consequences of laying off workers to financially support compliance. It is not clear if the Supreme Court will take action on the emergency appeals or not, but until then, the latest ruling is the law.

 

Update – 11/17/2021:

On November 17, 2021, OSHA announced that it has “suspended activities related to the implementation and enforcement of the updated ETS pending future developments in the litigation.”

 

The 5th U.S. Circuit Court of Appeals had ruled on November 12 that the administration’s COVID-19 vaccine and testing mandate was “fatally flawed” and ordered that OSHA not enforce the requirement “pending adequate judicial review” of a motion for a permanent injunction. 

 

According to an article in Holland and Knight, The court ordered that the ETS exceeded OSHA’s statutory authority because it was not an emergency exercise of OSHA’s “extraordinary power” but was, instead, “a one-sized-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the mandate purports to address.

 

What is the OSHA ETS for Covid-19?

On November 5, 2021 OSHA published an ETS in the Code of Federal Regulations to minimize the transmission of COVID-19 in the workplace that features requirements to protect workers. Most notably, this OSHA ETS for Covid-19 sets forth a mandate for all employers with 100 or more employees to require that all their employees be vaccinated or undergo regular COVID-19 testing. 

This OSHA ETS has already faced legal challenges in several states, but here is what the OSHA ETS for Covid-19 would entail, if it were to be implemented.

 

Why is an OSHA ETS for Covid-19 Necessary?

OSHA has identified COVID-19 as a hazard in the workplace as many workers have become ill or even died as a result of occupational exposure to the virus. Individuals who have not received the COVID-19 vaccine continue to be at the highest risk for contracting the virus and becoming seriously ill. The goal of the ETS is to protect those who are unvaccinated. OSHA estimates that the issuance of this ETS will prevent approximately 6,500 deaths and over 250,000 hospitalizations.

 

Who is Covered Under the OSHA ETS for Covid-19?

Amid the uncertain economic environment, OSHA is cognizant of potential disruptions for small businesses who may not be able to fully implement their requirements set forth in the ETS. Therefore, only large employers with 100 or more employees are covered under this standard. Regardless of the number of employees at any one site, if your company has 100 or more employees across all locations you fall under the applicability of this standard. 

 

For franchise locations, those that are owned and operated independently can count the employees only at their location. However, if safety across the franchise is managed as one company, the employees at all locations must be counted.

 

There are some special cases when it comes to temporary and seasonal employees. Temporary employees from a staffing agency fall under the employee count of the staffing agency, not the host employer. Temporary workers that are not from a staffing agency or seasonal employees only count if they are working for the employer during the time in which the ETS is active.  

 

Our friends up north across the border have recommended new mask guidance for Canadians. Read all about the updated guidance for face masks in Canada and why KN95 masks are recommended. 

 

What is Required by the OSHA ETS for Covid-19?

The OSHA ETS for Covid-19 requires all employers with 100 or more employees to develop, implement, and enforce a policy where either COVID-19 vaccination is mandated OR employees are required to undergo weekly COVID-19 testing and wear a face covering while in the workplace. Also, the ETS requires that employers obtain proof of vaccination and keep a roster of each employee’s vaccination status.

 

In addition to monitoring vaccination status, employers are also required to provide support to employees who have yet to receive the vaccination under the ETS. Employers are required to provide up to four hours of paid leave for employees to receive each dose of the vaccine and paid sick leave to recover from any side effects they may experience.

 

Are Employers Required to Pay for COVID-19 Testing?

Employers are not required to pay for the COVID-19 testing of employees who do not receive the vaccine under the OSHA ETS, however they may be required to do so under other laws, regulations or collective bargaining agreements. Employers may choose to cover the cost of the testing.

 

Employers are NOT required to pay for time off for employees who are recovering from COVID-19, those who are in isolation under CDC guidelines or for the actual vaccine itself.

 

What is the Implementation Timeline?

Employers have 30 days from issuance to implement all aspects of the standard except for requiring testing for those who have not completed their primary vaccination dose. Within 60 days of issuance, employers must implement a testing policy for those who have not received their first dose of the vaccine. Due to the recent litigation, these dates are currently in flux.

 

Who Needs to Wear a Face Covering?

Under the OSHA ETS for Covid-19, face coverings are required to be worn by employees who are not fully vaccinated while indoors or while sharing a vehicle with another employee for work purposes. The OSHA ETS for Covid-19 does not require fully vaccinated employees to wear a face covering, but local jurisdictions and corporations may have a stricter face covering requirement.

Note: OSHA uses the phrase “face covering” to differentiate from face masks or respirators which would be considered Personal Protective Equipment.

 

What Should I Do if an Employee Contracts COVID-19?

Regardless of their vaccination status, employees are required to provide prompt notice to their employer if they test positive for COVID-19. Upon notification, the employer must immediately remove the employee from the workplace until they can produce a negative test result, fulfill the CDC’s Isolation Guidance for returning to work, or they have a recommendation to return to work from a licensed healthcare provider.

 

Who Is Responsible for Recordkeeping?

OSHA does not have a requirement for who in the company is responsible for maintaining the roster of vaccinated employees or compiling test results for employees who are not vaccinated. Typically, this function resides in the safety or HR department due to the confidential nature of medical records.

 

Speaking of Recordkeeping, Do Employers Have to Record Cases of COVID-19 on Their 300 Logs?

Yes, if the case is found to be work-related. Likewise, employers are required to notify OSHA within 8 hours in the event of a COVID-19 related fatality and within 24 hours for any hospitalizations related to COVID-19. OSHA recommends using the guidance under 29 CFR 1904.5 to determine work-relatedness.

 

Are There Any Exceptions Allowed Under the OSHA ETS for Covid-19?

The Equal Employment Opportunity Commission outlined guidance earlier this year commensurate with the Americans with Disabilities Act. According to this Act, the vaccine cannot be mandated for someone if they have a medical contraindication or have a conflicting sincerely held religious belief that would prevent them from getting the vaccine.

 

In addition to the guidance from the EEOC, OSHA has allowed for an exception to the OSHA ETS for Covid-19 for employees who do not report to a workplace where other individuals are present, employees who work from home and employees who work exclusively outdoors. Employers should exercise caution when assessing if any of their employees fall into any of these categories. 

 

For example, construction workers may work primarily outside, but if the building they are working in is partially finished the OSHA ETS would apply. Also, if employees who work exclusively outdoors must share a vehicle with a co-worker to get to and from jobsites, the OSHA ETS would apply.

 

What Information Must I Provide My Employees?

Under the OSHA ETS for Covid-19, employers must provide their employees with information on the requirements within the ETS: 

• Information on OSHA’s rules regarding discrimination for reporting violations 

• Your company’s written policy and procedure 

Fore more information on the criminal penalties associated with falsifying vaccination documentation, check out the “Key Things to Know About COVID-19 Vaccine” document from the CDC.