OSHA Issues COVID-19 Emergency Temporary Standard

Update: November 9, 2021 - In the brief order, a three-judge panel on the Fifth Circuit Court of Appeals has temporarily blocked the new vaccine standard. It was said that the petitioners in the case "give cause to believe there are grave statutory and constitutional issues with the Mandate." The court did not elaborate whether its order would apply nationwide or would only affect the states under its jurisdiction.

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) in an effort aimed to reduce the transmission of COVID-19 in the workplace. The emergency rule is scheduled to be published in the November 5th Federal Register. OSHA estimates that two-thirds of private-sector workers, approximately 84.2 million, will be covered under the ETS, which will preempt any state laws, according to Department of Labor Solicitor Seema Nanda. State Plans standards’ will have to be implemented to be “at least as effective as” OSHA’s federal standard.

The ETS requires all employers with 100 or more employees to implement a COVID-19 vaccination program or regular testing in addition to mandatory face coverings.

Employers will have until December 5th to develop, implement and enforce these policies. Companies must ensure that employees are fully vaccinated by January 4th, or test negative for COVID-19 once a week

Employers will be tasked with determining the vaccination status of each employee while collecting and maintaining records and rosters of each employee’s vaccination status. For those employees who are not fully vaccinated, employers must ensure they are tested weekly. If an employee receives a positive COVID-19 test, they must immediately notify employers and be removed from the workplace. Employees who are removed must follow the Centers for Disease Control and Prevention’s (CDC) isolation guidelines, quarantining for 10 days or until they have received a return-to-work recommendation from a licensed healthcare provider. The ETS also states that reasonable time off must be provided to employees in order to receive vaccines as well as sick leave to recover from any side effects experienced after receiving the vaccines.

In a press conference, OSHA Deputy Assistant Secretary Jim Frederick said many employers already are complying with the requirements of the ETS, stating “we know that the vast majority of workplaces will comply with this rule.”

 

Which employers are covered by the ETS?

  • Private sector employers with 100 or more employees in the company.
  • In states with OSHA-approved State Plans, state and local government employers, as well as private sector employers with 100 or more employees will be covered by state occupational safety and health requirements.

Which employers are not covered by the ETS?

  • Healthcare facilities that are subject to the previous Healthcare ETS.
  • Workplaces who have fewer than 100 employees.
  • Public employers in states without State Plans.

Which employees are not subject to the ETS?

  • Employees while working from home.
  • Employees who are not reporting to a workplace where other individuals are present.
  • Employees who work exclusively outdoors.

 

The Centers for Medicare and Medicaid (CMS) has also issued an interim companion rule requiring COVID-19 vaccinations for staff in facilities that receive Medicare and Medicaid funding. These facilities must develop and implement programs to ensure all staff are fully vaccinated by the January 4th deadline.

 

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