OSHA Emergency Temporary Standards

by | Nov 5, 2021 | COVID-19, Payroll

The following information was shared by HR Pilot from Tokio Marine:

OSHA has released its much-anticipated Emergency Temporary Standards (“ETS”) that require employers with 100+ employees to be vaccinated or submit to weekly testing. Below is a summary of the ETS, including how to determine if you have 100+ employees, who bears the cost of testing, and how much paid time off you must provide for employees to be vaccinated and recover from side effects. We will be sending you an OSHA ETS Compliance Toolkit in the coming days, as well as conducting a webinar on the ETS. More information on this and how to register for the webinar is at the end of this alert.

Preemption:

  • The OSHA ETS overrides any state and local requirements that attempt to prohibit or limit vaccine mandates, wearing face coverings, and COVID-19 testing in the workplace.

Covered Employers:

  • Employers under OSHA’s authority with 100+ employees at any time the ETS is in effect are subject to the ETS.
    • In determining if the 100+ employee threshold is met, employers must count all employees in every one of its US workplaces without regard for where the employees works or their current vaccination status. This includes all full-time, part-time, minors (under 18 years), and temporary or seasonal employees who are employed directly by the employer. It does not include temporary employees who are obtained from a staffing agency or properly classified independent contractors.
    • If an employer later has less than 100 employees, it is still covered by the ETS until the ETS is no longer in effect.
  • In states with OSHA-approved State Plans, the state agency must issue rules that meet or exceed the OSHA ETS within 30 days. For states that fail to adopt an appropriate ETS, OSHA will take steps to reinstate its federal enforcement authority over workplace safety in that state.
  • The ETS does not apply to federal contractors, which are covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety, or employers who provide healthcare services that are subject to the Healthcare ETS.
  • Public entities: The ETS does not apply to state and local government employers in states without State Plans, because state or local government employers and employees are exempt from OSHA coverage under the OSH Act. However, in states with OSHA-approved State Plans, state and local government employers with 100 or more employees will be covered by State occupational safety and health requirements, and State Plans must adopt requirements for state and local employers that are at least as effective as the OSHA ETS.

Covered Employees:

  • All employees of a Covered Employer are subject to the ETS vaccination and testing requirements, unless the employee:
    • Does not report to a workplace where other individuals (coworkers or customers) are present;
    • Works exclusively from home; or
    • Works exclusively outdoors.
    • Note: Employees who fall within the three categories above must still be included in the employee count when determining if the 100+ employee threshold is met.

Important Dates:

  • November 5: The ETS is effective immediately upon publication in the Federal Register, which is expected to be November 5.
  • December 5: Employers must comply with the following requirements within 30 days after publication in the Federal Register, which is expected to be December 5:
    • Implement a vaccination policy (see Vaccination Policy below for more information);
    • Provide employees with information regarding the ETS, workplace policies and procedures, vaccine efficacy, vaccine safety and benefits, protections against retaliation and discrimination, and information regarding criminal penalties for knowingly providing false documentation;
    • Determine the vaccination status of each employee, obtain acceptable proof of vaccination, and maintain records regarding vaccination status (which should be kept separate from personnel files);
    • Ensure employees who are not fully vaccinated wear face coverings when indoors or in a vehicle with another person for work purposes;
    • Require employees to promptly provide notice of a positive COVID-19 test or diagnosis and remove all such employees from the workplace;
    • Report work-related COVID-19 deaths to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours; and
    • Make records covered by the ETS available for inspection when requested. Employers are not required to submit documents to OSHA unless specifically requested.
  • January 4: Employees must have completed their vaccination series within 60 days after publication in the Federal Register, which is expected to be January 4. Employees do not need to be fully vaccinated (i.e., 2 weeks after the final dose). This means vaccine doses must be administered by the following dates:
    • For the Johnson & Johnson vaccine: January 4.
    • For the Pfizer vaccine: first dose on or before December 14; second dose 21 days later.
    • For the Moderna vaccine: first dose on or before December 7; second dose 28 days later.
    • The ETS permits employees to receive other vaccines than those listed above. Acceptable vaccines are any that have been approved or authorized for emergency use by the FDA, vaccines listed for emergency use by the WHO, vaccines used in clinical trials, and “mix-and-match” vaccination series.
  • January 4: Employers must begin weekly testing of employees who are not fully vaccinated.
    • Employees who are in the workplace at least once a week must be tested weekly.
    • Employees who have been away from the workplace for a week or longer must be tested within 7 days before returning to work.
    • Employees who have completed their vaccination series by January 4 do not need to be tested even if they are not fully vaccinated (i.e., even if it has not been two weeks since their final dose). If an employee has only received one dose of a two-dose vaccine, this employee must be tested.

Vaccination Policy

  • Employers must implement a vaccination policy but are given flexibility in how it is structured. If an employer already has a vaccination policy, it must ensure it complies with the minimum standards required by the ETS.
    • Mandatory vaccination for all employees with no testing option: All employees must get vaccinated. Employees would not have the option to be tested weekly.
    • Mandatory vaccination for one class of employees with a testing option for another class of employees: An example of this would be requiring all employees who have contact with the public to be vaccinated, while employees working in an office setting without customer contact would have the option of getting weekly tests.
    • Testing option for all employees: All employees would have the option to get weekly tests. If employees choose not to be vaccinated, then they must submit to weekly testing.
  • Employees who do not comply with the employer’s policy may be disciplined, including suspension or termination.

Exemption From Vaccine Requirements and Reasonable Accommodations

  • If an employer implements a mandatory vaccination policy, the following employees would be exempted:
    • Those for whom a vaccine is medically contraindicated;
    • Those for whom medical necessity requires a delay in vaccination; and
    • Those legally entitled to a reasonable accommodation under the ADA because they have a disability or Title VII because they have a sincerely held religious belief, practice, or observance that conflicts with the vaccination requirement.
  • Employees who are exempted or entitled to a reasonable accommodation must comply with testing and face covering requirements.

Proof of Vaccination Status

  • Employers must maintain records of every employee’s vaccination status, whether vaccinated or unvaccinated.
  • Acceptable proof of vaccination includes physical or digital copies of:
    • The record of immunization from a health care provider or pharmacy;
    • A copy of the U.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 do not need to track booster shots at this time.
  • Employers must notify employees they are subject to criminal penalties for submitting fraudulent vaccination records. An employer who knowingly accepts and maintains fraudulent proof of an employee’s vaccination status is subject to penalties.

Paid Time Off for Vaccinations

  • The ETS requires employers to provide paid time off to receive the vaccine and recover from its side effects (“Vaccine Sick Leave”).
  • Employers must provide at least 4 hours of Vaccine Sick Leave per dose administered. The 4 hours cannot be deducted from an employee’s paid sick leave, PTO, or vacation.
  • Employers must provide at least 2 days of Vaccine Sick Leave per dose to recover from side effects. If an employee requires additional days to recover, the employer is not required to provide additional Vaccine Sick Leave but must provide the employee with reasonable time off to recover.
  • Employees may choose to use any accrued paid sick leave, PTO, or vacation if they require additional time to recover from vaccine side effects. An employer may only require employees to use paid sick leave or PTO in this instance; it cannot require the use of vacation.

Weekly Testing and Costs of Tests

  • Employers are not required under the ETS to pay the cost of weekly testing for employees who choose not to get vaccinated. However, other laws, regulations, or collective bargaining agreements may require this.
  • Employers may choose to cover some or all of the costs associated with weekly testing.
  • Employers must maintain a record of each test result required to be provided by each employee under the ETS or obtained during tests conducted by the employer. These records must be maintained in accordance with 29 CFR 1910.1020 as employee medical records and must not be disclosed except as required by this ETS or other federal law. However, these records are not subject to the retention requirements of employee medical records but must be maintained and preserved while the ETS remains in effect.
  • Employees away from the workplace for more than 7 days must receive a test in the 7 days before they return to the workplace and provide documentation of the test result to the employer.
  • If an unvaccinated employee does not provide the results of a COVID-19 test as required by the ETS, the employer must keep the employee removed from the workplace until the employee provides a test result.
  • In addition to being tested for COVID-19 on a weekly basis, unvaccinated employees must also wear a face covering at the workplace.
  • If an employee tests positive for COVID-19, they are not required to undergo weekly testing for 90 days to avoid false positive results. However, the employee is required to wear a face covering if required by the ETS.
  • The ETS does not require employers to provide paid time off if an employee tests positive for COVID-19; however, this may be required under other laws and regulations.

We will be sending you an OSHA ETS Compliance Toolkit in the coming days with more information, including vaccination policy templates and employee notices required under the ETS, such as penalties for providing false documentation, vaccine efficacy, and vaccine safety. Also be sure to join us for our webinar, “Vaccine Mandates and the OSHA Emergency Temporary Standards” on November 23, 2021, at 10:30 a.m. Pacific.

  • Employers are not required under the ETS to pay the cost of weekly testing for employees who choose not to get vaccinated. However, other laws, regulations, or collective bargaining agreements may require this.
  • Employers may choose to cover some or all of the costs associated with weekly testing.
  • Employers must maintain a record of each test result required to be provided by each employee under the ETS or obtained during tests conducted by the employer. These records must be maintained in accordance with 29 CFR 1910.1020 as employee medical records and must not be disclosed except as required by this ETS or other federal law. However, these records are not subject to the retention requirements of employee medical records but must be maintained and preserved while the ETS remains in effect.
  • Employees away from the workplace for more than 7 days must receive a test in the 7 days before they return to the workplace and provide documentation of the test result to the employer.
  • If an unvaccinated employee does not provide the results of a COVID-19 test as required by the ETS, the employer must keep the employee removed from the workplace until the employee provides a test result.
  • In addition to being tested for COVID-19 on a weekly basis, unvaccinated employees must also wear a face covering at the workplace.
  • If an employee tests positive for COVID-19, they are not required to undergo weekly testing for 90 days to avoid false positive results. However, the employee is required to wear a face covering if required by the ETS.
  • The ETS does not require employers to provide paid time off if an employee tests positive for COVID-19; however, this may be required under other laws and regulations.

Pin It on Pinterest

Share This