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Compliance Update – OSHA Releases Vaccination and Testing ETS

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OSHA Releases Vaccination and Testing ETS

On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address COVID-19 infections in the workplace. Included in the release are FAQs for employers and information for employees on their rights and responsibilities for providing accurate information.

Affected employers include private employers with 100 or more employees (firm- or company-wide count). Those employers subject to the ETS will be required to comply with most provisions of the ETS by Dec. 5, 2021, and with its testing requirements by Jan. 4, 2022. Employers in states that have their own state OSHA plan generally will also be required to follow the ETS, as state OSHA plans will have 30 days to adopt the federal ETS or implement their own vaccination standard.

ETS Requirements
The ETS requires employers to:

  • Develop, implement and enforce a mandatory COVID-19 vaccination policy; or
  • Create a policy allowing employees to choose to get a vaccination or wear a face covering in the workplace and have weekly COVID-19 testing done.

Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination and keep a roster of each employee’s vaccinations status. OSHA also released sample mandatory vaccination and testing/mask policies available for use.

There will need to be accommodations/exemptions made and allowed for religious or medical reasons, and employers can download sample accommodation request letters and responses below.

Weekly Testing Requirements
Employees who are not fully vaccinated must be tested weekly or within seven days before returning to work. The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements.

Paid Leave
Employers are also required to allow reasonable time—including up to four hours of paid time—to receive a primary vaccination dose. Reasonable time and paid sick leave are also required to recover from any side effects of the vaccination. Employees are required to provide immediate notice of a positive COVID-19 test or diagnosis, and will be removed immediately from work until return to work criteria are met.

Employer Takeaway
Along with the ETS, OSHA issued a lengthy FAQ that employers can use to help answer questions such as counting employees towards the 100 employee threshold, requirements for multisite employers and remote workers, what proof of vaccination is required and more. Also of keynote in the FAQs is that, “OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering or testing.”

This is obviously a fluid situation with further regulation (and litigation) sure to follow. In fact, OSHA is requesting comments/questions to be submitted over the next 30 days prior to the ETS becoming a permanent standard. We will continue to update you as we digest and learn more about this new ETS, and please be on the lookout for an upcoming webinar discussing it in much more detail.

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