OSHA Issues New Emergency Temporary Standard For COVID-19
On November 3, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration issued a new Emergency Temporary Standard for COVID-19. You can find the new 490-page ETS here https://www.federalregister.gov/public-inspection/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard
Under the new ETS, covered employers (most public and private employers with 100 or more employees) must either develop, implement and enforce a mandatory COVID-19 vaccination policy or adopt a policy requiring employees to 1. choose to either be vaccinated or 2. undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.
In order to meet the definition of “mandatory vaccination policy”, the policy must require: vaccination of all employees, including all new employees as soon as practicable, other than those employees (1) for whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination, or (3) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely-held religious beliefs, practices, or observances that conflict with the vaccination requirement. Thus, the ETS recognizes several exceptions to the vaccination mandate.
The ETS also requires covered employers to:
- 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 the 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.
Although other laws may require employers to pay for COVID-19 testing, the ETS does not require them to do so.
The ETS is effective immediately upon its publication in the Federal Register, which should be tomorrow, November 5, 2021. Employers must comply with most requirements of the ETS within 30 days of publication and with testing requirements within 60 days of publication.
Further updates will follow as we are able to more thoroughly review the terms of the ETS.