OSHA has issued an Emergency Temporary Standard (“ETS”) to minimize the risk of COVID-19 transmission in the workplace. The ETS covers all employers with a total of 100 or more employees with a few exceptions described below. Generally, covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy with an exception for employers that instead adopt a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.

While the full text of the ETS is located at: www.osha.gov/coronavirus/ets2. Below is a highlight of some of the requirements.

• Which employers are covered by the ETS?
  • Private employers with 100 or more employees,  firm  or corporate wide; and  
  • In states with OSHA-approved State Plans, state and local-government employers and  private employers, with 100 or more employees, will be covered by the State Plans.

• Which workplaces are not covered by the ETS?   
  • Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, and settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS;  
  • Workplaces of employers who have fewer than 100 employees in total; and
  • Public employers in states without OSHA State Plans.

• If an employer is covered by the ETS, does that mean all of its employees must follow the provisions of this ETS? No. The requirements of the ETS do not apply to:
  • Employees who do not report to a workplace where other individuals are present;
  • Employees while working from home; and
  • Employees who work exclusively outdoors.

• What does the ETS require employers to do?  
  • Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace;
  • Determine the vaccination status of each employee by obtaining acceptable proof of vaccination from vaccinated employees, maintaining records of each employee’s vaccination status, and maintaining a roster of each employee’s vaccination status;
  • Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose;
  • Ensure that each employee who is not fully vaccinated 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 the workplace for a week or longer);
  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19;
  • Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return to work criteria are met;
  •  Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
  • Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS, vaccine efficacy, safety, and the benefits of being vaccinated, protections against retaliation and discrimination, and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
  • Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.

• When does the ETS take effect?  Employers must comply with most provisions by 30 days after the date of publication in the Federal Register.  Employers must comply with the testing requirement by 60 days after the date of publication in the Federal Register.

Contact the attorneys at York Bowman Law, LLC  to assist with this ETS compliance.