The Situation: The Occupational Safety and Health Administration (OSHA) has issued its COVID-19 emergency temporary standard (ETS) for covered employers, obligating them to create, implement, and enforce a written policy requiring its employees to become vaccinated or undergo mandatory weekly COVID-19 testing and wear a face covering at the workplace. The controversial ETS contains additional wide-ranging mandates for covered employers related to COVID-19 testing policies, paid leave, information and education, record-keeping, and more. Even employers who already have vaccination policies must ensure their policies comply with the new requirements.
- The ETS applies to private employers with more than 100 employees, as well as certain state and local government employers, and it preempts conflicting state and local laws.
- Covered employers have only 30 days, by December 5, 2021, to comply with most of the new requirements. Employers have an additional 30 days, by January 4, 2022, to comply with the mandatory testing regime for unvaccinated employees. OSHA anticipates the ETS will be in effect for six months (through May 2022), though the ETS could be modified or extended. The ETS, or a version of it, could also become a final rule.
- Among other requirements, covered employers must determine, and obtain proof of, each employee’s vaccination status, and maintain certain records, including a roster of all employees’ vaccination status.
- The ETS also requires covered employers to immediately remove employees from the workplace who test positive for, or are diagnosed with, COVID-19, and provide employees paid time to receive each vaccine dose and recover from side effects of the vaccine. Covered employers are not required to pay for unvaccinated employees’ weekly COVID-19 testing.
- Employers face penalties of up to $13,653 for each violation. Willful or repeated penalties are $136,532 per violation.
Below are some key points of the ETS:
1. Which employers are covered:
Private employers with more than 100 employees, as well as certain state and local government employers, are covered by the ETS. The employee threshold is calculated entity-wide, not by location. The employee count is determined as of the date of today’s publication (November 5, 2021). Employers with 100 or more employees as of this date are subject to the ETS for the duration of the ETS, even if their employee count later drops below the threshold. The reverse is not true, however. An employer that currently has fewer than 100 employees will be subject to the ETS only upon reaching the threshold, if the ETS is still in effect.
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Parker Hudson attorneys are available to answer any questions or concerns you have regarding the implications of this temporary rule and changes you may need to make to ensure compliance with the ETS.