In response to the pandemic threat, the Occupational Safety and Health Administration (OSHA) issued the Emergency Temporary Standard: COVID-19 Vaccination and Testing (ETS), which was supposed to begin on December 5, 2021, and become a mandatory part of OSHA Compliance in the US.
The ETS applies to companies employing 100 or more workers, requiring employers to mandate vaccinations for all employees and implement additional workplace safety policies.
Following petitions in federal circuit courts, the US Court of Appeals for the Fifth Circuit decided to lift the stay. Shortly after that, "OSHA posted new compliance dates on its website. Covered employers must now comply with the provisions of the ETS by January 10, 2022. If an employer opts to permit employees to test instead of vaccination, then testing of unvaccinated employees must begin on or before February 9, 2022."
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Here are some general guidelines to help you make sense of the OSHA ETS, whom it covers, and what it requires.
The ETS broadly applies to all employers under the authority of the Occupational Safety and Health Authority. Affected industries include (but are not limited to) retail, manufacturing, warehouses, delivery services, construction, agriculture, and healthcare. In addition, the ETS applies to any employer within a covered industry who employs 100 or more workers throughout the company.
Exemptions from the ETS requirements include employees working from home, exclusively outdoors, or in a workplace where no other person is present. In addition, according to OSHA, employers who do not institute a mandatory vaccination policy should consider alternative measures, such as remote work, to remove unvaccinated employees from workplaces covered by the ETS.
The COVID-19 ETS requires employers under its jurisdiction to institute vaccine mandates for employees or establish an alternative safety program for employees who remain unvaccinated, including weekly testing and face-covering requirements:
The OSHA website provides sample templates for both policy options. Whether they institute mandatory vaccinations or a testing and face-covering policy, employers must keep track of the vaccination status of all covered employees. Employees working from home, exclusively outdoors, or remotely are not subject to this requirement to determine vaccination status.
In most cases, employers will likely have to institute COVID-19 testing regardless of the policy they choose, given the likelihood of exemptions. Thus opting for a mandatory vaccination policy might not allow an employer to avoid the logistics of implementing a testing program.
Covered employers must facilitate vaccination for employees, providing up to four hours of paid time off at regular wages and paid sick leave while employees recover from the side effects of the vaccinations.
Employers subject to the ETS who fail to comply with its requirements during its effective period could face a penalty of up to $13,653 for each violation, along with state or federal OSHA citations or additional penalties. In addition, non-compliant employers could face separate penalties for every facility or part of a facility and every employee found to violate the emergency standard.
Non-compliant employers covered by the ETS could also face penalties for additional claims made by employees, such as retaliation, whistleblower, and negligence claims.
The ETS stipulates that covered employers must provide all covered employees with the following information in a straightforward manner and language employees can understand:
The OSHA ETS states that employers must maintain records detailing the vaccination status of each of their employees. Records must include a valid proof of vaccination for each employee and a vaccination status roster that lists all employees. Employers who have implemented vaccination status records before the enactment of the ETS are not required to re-determine the status of previously documented, fully vaccinated employees.
Covered employers must also maintain records of all test results provided by employees. Employers must treat these records like medical records, maintaining their confidentiality under federal law. Employers must keep these records for the period covered by the ETC, not for the standard OSHA record retention period of 30 years.
Some states have their own OSHA plans, but such programs must generally be "at least as effective as the standards set by OSHA." Therefore, the federal OSHA ETS does not apply immediately in these states.
Currently, 22 states have OSHA-approved state plans to regulate private-sector employers (see the complete list in the official (OSHA FAQ). These states must either adopt the federal standard or inform OSHA to provide equivalent protection to employees.
OSHA's ETS supersedes any state or local requirements on the subjects of vaccination, wearing masks, and testing for COVID-19, except for state plans approved by OSHA. However, some states have passed, or are planning, legislation that limits an employer's ability to require employee vaccination.
The ETS entirely comes into effect on January 10, 2021. Therefore, testing and immunization compliance requirements begin on February 9, 2022.
ETS is a temporary measure for six months. It will then need to be replaced by a permanent OSHA standard. A permanent standard is subject to a formal rulemaking process that requires a notice-and-comment period of six months.