Earlier today the U.S. Department of Labor’s Occupational Safety and Health Administration released the long-anticipated Emergency Temporary Standard (ETS) for COVID-19 vaccination and testing. The ETS requires affected employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Employers are permitted to utilize regular testing and the wearing of a face mask while working in lieu of vaccination. The ETS applies to employers with more than 100 employees. The Department of Labor announced that the ETS is effective immediately upon its publication in the Federal Register.
Employers must comply with most requirements within 30 days of publication and with the testing requirements within 60 days of publication.
What are the effective date and the compliance dates for the ETS (1910.501)?
- The effective date for the ETS is November 5, 2021, which is the date the ETS will be published in the Federal Although the ETS becomes effective immediately, employers are not required to comply with the requirements of the ETS until the compliance dates, as follows:
- All provisions except paragraph (g) – 30 days after date of publication in the Federal Register
- Paragraph (g) – COVID-19 testing for employees who are not fully vaccinated – 60 days after date of publication in the Federal Register
Which employers are covered by the ETS?
- Private employers with 100 or more employees firm or corporate
- In states with OSHA-approved State Plans, state and local-government employers, as well as private employers, with 100 or more employees will be covered by state occupational safety and health requirements
Is the count based on 100 employees for the entire business or 100 employees per individual location?
- The count should be done at the employer level (firm- or corporate-wide), not the individual location Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted. For example, if a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
How do employers determine if they meet the 100-employee threshold for coverage under the standard if they have fluctuating employee numbers?
- The determination of whether an employer falls within the scope of this ETS based on number of employees should initially be made as of the effective date of the standard (November 5, 2021). If the employer has 100 or more employees on the effective date, this ETS applies for the duration of the standard. If the employer has fewer than 100 employees on the effective date of the standard, the standard would not apply to that employer as of the effective date. However, if that same employer subsequently hires more workers and hits the 100-employee threshold for coverage, the employer would then be expected to come into compliance with the standard’s requirements. Once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce. For example, if an employer has 103 employees on the effective date of the standard, but then loses four within the next month, that employer would continue to be covered by the ETS.
How is this ETS affected by State laws that prohibit or limit employers' authority to require employees to be vaccinated?
- This ETS preempts States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a Federally approved State Plan
What type of COVID-19 tests are acceptable under the rule?
- Under the ETS, a “COVID-19 test” must be a test for SARS-CoV-2 that is:
- cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the S. Food and Drug Administration (FDA) to detect current infection with the SARS CoV-2 virus (e.g., a viral test);
- administered in accordance with the authorized instructions; and
- not both self-administered and self-read unless observed by the employer or an authorized telehealth
Does the ETS require employers to cover the costs associated with COVID-19 testing?
- The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
Do unvaccinated employees who work remotely need to submit to weekly COVID-19 testing?
- The requirements of the standard do not apply to the employees of covered employers who do not report to a workplace where other individuals such as coworkers or customers are present or while working from home. This includes the testing requirements of paragraph (g) of the ETS.
What documentation will be required to verify vaccination status?
- The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially The following list includes the acceptable documentation for proof of vaccination:
- the record of immunization from a health care provider or pharmacy;
- a copy of the S. COVID-19 Vaccination Record Card;
- a copy of medical records documenting the vaccination;
- a copy of immunization records from a public health, state, or tribal immunization information system; or
- a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine( s).
- Employers must require employees to provide one of the listed acceptable documents for proof of vaccination or the employee statement as described above. These are the only acceptable forms of proof of vaccination
Are employers required to provide employees with access to their COVID-19 test records?
- The ETS states that the employer must make available, for examination and copying, the individual COVID-19 vaccine documentation and any COVID-19 test results required by the ETS for a particular employee to that employee and to anyone having written authorized consent of that employee by the end of the next business day after a request. Prompt employee access to this information ensures that employees have the information necessary to take an active role in their employers’ efforts to prevent COVID-19 transmission in the workplace.
Are employers required to provide specific information regarding each provision of the ETS to the employees?
- The employer must inform each employee, in a language and at a literacy level the employee understands, about the requirements of the standard and any policies and procedures the employer establishes to implement this ETS. This includes:
- any employer policies under paragraph (d);
- the process that will be used to determine employee vaccination status, as required under paragraph (e);
- the time and pay/leave they are entitled to for vaccinations and any side effects experienced following vaccinations, as required by paragraph (f);
- the procedures they need to follow to provide notice of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider, as required under paragraph (h);
- and the procedures to be used for requesting records under paragraph (1).
- Employers must provide additional information to unvaccinated employees, including information about the employer’s policies and procedures for COVID-19 testing and face coverings, as required by paragraphs (g) and (i),
Will the ETS face legal challenges?
- The short answer is, yes, it will likely face legal challenges as opponents of the ETS have already indicated their intention to file lawsuits seeking to invalidate the standard. OSHA will need to establish the existence of a II grave danger II to workers in order to successfully defend the ETS. We do not currently know if courts will block enforcement of the emergency rule while the arguments are considered or if the ETS will be permitted to remain in effect during the However, even with the expected challenges, employers are advised to create a plan for compliance as it is unlikely that all aspects of the ETS will be invalidated via the courts.
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