OSHA STANDARD REQUIRES EMPLOYERS WITH 100 OR MORE EMPLOYEES TO IMPLEMENT COVID-19 VACCINATIONS OR TESTING POLICIES (STANDARD ON HOLD AS OF 11/8/21)

Effective October 5, 2021

The Emergency Temporary Standard implemented by OSHA and posted about on November 5, 2021 has been stayed (put on hold) by the federal Fifth Circuit Court of Appeals.  Below is a description of the Standard.  Check back for more information as the courts decide whether and when it may again become enforceable.

Applicability

  • the ETS applies to employers in all workplaces that are under OSHA’s authority and jurisdiction that have a total of at least 100 employees.
  • Does NOT apply to:
    • workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety (federal contractors and subcontractors);
    • Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (§ 1910.502);
    • Public employers;
    • employees who do not report to a workplace where other individuals such as coworkers or customers are present;
    • employees while they are working from home;
    • employees who work exclusively outdoors.

Required Within 30 Days:

  • Determine whether each employee has been vaccinated, obtain proof of vaccination, keep records of each employee’s vaccination status, and keep a list of each employee’s vaccination status.
  • Develop, implement, and enforce a mandatory vaccination policy or a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
  • Provide employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.
  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
  • Immediately remove from the workplace any employee, regardless of vaccination status, who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider and keep the employee out of the workplace until return to work criteria are met.
  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
  • Provide each employee with information about the requirements of the ETS and the employer’s vaccination or vaccination/testing policies and procedures; the CDC document “Key Things to Know About COVID-19 Vaccines” (https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html ); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
  • Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative (i.e. that employee’s vaccination or testing records, the aggregate number of fully vaccinated employees at a workplace, and the total number of employees at the workplace).

Required Within 60 days

If an employer elects to allow weekly testing in lieu of vaccinations then it has 60 days to begin compliance with the ETS’s testing requirements.

What About Florida’s Recently Scheduled Special Legislative Session?

The ETS preempts state and local laws. As stated in OSHA’s summary of the ETS, “[i]n particular, OSHA intends to preempt any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing.”

Where Can I Find Out More About the Emergency Temporary Standard?

Clients may call Mark Van Valkenburgh with any questions about their obligations under the new Emergency Temporary Standard.  Additional information may also be found on OSHA’s website at https://www.osha.gov/coronavirus/ets2

*The above is provided for information purposes only and is not intended to constitute legal advice or to establish an attorney-client relationship with any recipient. Please consult with a qualified attorney before taking any action in response to OSHA’s Emergency Temporary Standard.

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