Anne E. Jenness

Published on : 2021-11-19

WHAT IS THE OSHA ETS?

The OSHA ETS is a new temporary standard that requires certain employers to ensure that employees are vaccinated against COVID-19 or submit to weekly testing for COVID-19.

WHICH EMPLOYERS ARE SUBJECT TO THE OSHA ETS?

The OSHA ETS covers private employers with 100 employees or more, even if those employees are spread out at multiple locations. The count includes offsite workers and employees who work from home.  Both part- and full-time employees count toward this 100 employee threshold. Employers in healthcare settings that are subject to the Healthcare ETS are not covered under the new OSHA ETS.

I HAVE HEARD THAT THERE IS LITIGATION SEEKING TO PREVENT THE OSHA ETS FROM TAKING EFFECT. WHAT DOES THIS MEAN FOR MY COMPANY?

The OSHA ETS is presently stayed by court order. If the stay is lifted, however, there may be very short timelines for employers to come into compliance with the OSHA ETS. Accordingly, for most employers, it will be prudent to proceed as though the ETS will take effect, for example, by becoming familiar with the ETS, developing a strategy for collecting vaccination status information in a timely and compliant manner, and updating COVID-19 policies to comply with ETS requirements.

WHAT ARE THE BASIC ELEMENTS OF THE OSHA ETS?

According to OSHA’s press release on November 4, 2021, the OSHA ETS requires that covered employers:

• • • …[D]evelop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
    • …[P]rovide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
    • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
    • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
    • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
    • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

WHAT ARE THE KEY DEADLINES IN THE OSHA ETS?

Requirements effective December 6, 2021

• • • Establish and implement OSHA ETS-compliant vaccination policy and practices (see below for key components).
    • Determine vaccination status for each employee, obtain proof of vaccination, maintain records of vaccination status.

Requirements effective January 4, 2022

• • • Ensure that employees who are not fully vaccinated provide proof of weekly COVID-19 testing if they are in the workplace; for employees who are out of the workplace, obtain proof of negative COVID-19 test within 7 days before returning to the workplace.
    • Final deadline for employees to finish vaccination series and avoid OSHA ETS testing requirements.

WHAT ARE SOME KEY COMPONENTS OF A COMPLIANT VACCINATION POLICY/ PRACTICE?

Pursuant to the OSHA ETS, the employer’s vaccination policy and practice should:

• • • Provide employees with time for vaccination and time for recovery from side effects of vaccination.
    • Require employees to notify the employer promptly in the event of a positive COVID-19 test or COVID-19 diagnosis.
    • Ensure that any employee who receives a positive COVID-19 test or diagnosis is removed from the workplace.
    • Ensure that employees who are not fully vaccinated wear face coverings when indoors or when inside a vehicle with another person for work purposes.
    • Provide specified information to employees, including:

• • • • • • Information about the OSHA ETS;
          • Employer policies implementing the OSHA ETS;
          • The CDC’s document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.cdc.gov/​coronavirus/​2019-ncov/​vaccines/​keythingstoknow.html (CDC, October 7, 2021);
          • Information about retaliation and protected activities under OSHA; and,
          • Information about criminal penalties for supplying false documentation.
    • Ensure the employer reports COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours
    • Include making and keeping certain records, as identified in the OSHA ETS

HOW MUCH TIME DO EMPLOYEES HAVE TO BECOME FULLY VACCINATED?

If an employee completes the vaccination series by January 4, 2022, that employee will not need to be tested for COVID-19 under the OSHA ETS regular testing requirements. This is true even if the employee has not undergone the full two-week waiting period that is otherwise required to meet the definition of “fully vaccinated.”

DO UNVACCINATED EMPLOYEES WHO WORK ONLY REMOTELY NEED TO SUBMIT TO WEEKLY COVID-19 TESTING?

According to OSHA, an individual employee does not need to submit to weekly COVID-19 testing if the employee works remotely and does not report to any workplaces where others are present (e.g., coworkers or customers).

ARE THERE OTHER WAYS FOR COVERED EMPLOYERS TO PREPARE FOR THE OSHA ETS TO TAKE EFFECT?

Covered employers will need to decide whether they will create a mandatory vaccine policy or a policy that includes COVID-19 testing as an option for employees. As an employer weighs this decision, it will be important to consider how many of its employees are unvaccinated, and the cost and availability of testing in the employer’s area. This may require that the employer research testing options in the employer’s local community. Employers should compare costs of mandatory testing programs with costs associated with vaccination.

If an employer is considering a mandatory vaccination program, the employer should determine how it will handle requests for accommodation under the vaccination policy, including medical and religious accommodations and medical contraindications.

HOW LONG WILL THIS OSHA ETS REMAIN IN EFFECT?

OSHA has said that it expects the ETS to remain in effect for six months from November 5, 2021. However, OSHA has suggested that it may extend this period.

WHERE CAN I OBTAIN MORE INFORMATION?

The full OSHA ETS Rule is available here.

Additionally, the OSHA website provides links to a webinar, frequently asked questions, and other compliance materials.

For specific and individualized questions, we recommend that you contact employment counsel for further assistance.

Anne is admitted in the state and federal courts of New Hampshire, and the State of California (inactive).

THIS ARTICLE IS NOT INTENDED TO PROVIDE LEGAL ADVICE, AND DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.