On November 4, 2021, the Occupational Safety and Health Administration (OSHA) filed its highly-anticipated Emergency Temporary Standard (ETS) related to COVID-19 vaccines, testing, and face coverings in the workplace.

Which Companies Must Comply with the ETS?

OSHA’s COVID-19 ETS applies to employers with 100 or more employees. The counting of employees should be done at the employer (firm- or corporate-wide), not the individual location level. For example, if a company has three locations with 25 employees at Location A, 50 employees at Location B, and 40 employees at Location C, that company would be subject to the ETS because it has a combined 115 employees across all locations. The count for total employees also includes part-time employees, employees who are minors, employees working from home, employees who perform work at offsite locations, employees who work exclusively outdoors, and temporary and seasonal workers employed directly by the employer during the ETS. Not all of the employees in these specific groups may be subject to the requirements of the ETS (see below), but they must be counted in determining whether an employer has met the 100-employee threshold for coverage by the ETS.

Are All Employees of a Covered Employer Subject to the ETS Requirements?

No. The requirements of the ETS do not apply to: (1) employees who do not report to a workplace where other individuals are present; (2) employees while working from home; or (3) employees who work exclusively outdoors.

What are the Requirements for Employers?

1. Develop, Implement, and Enforce a Mandatory COVID-19 Vaccination Policy. Employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, or, they must establish, implement, and enforce a policy allowing employees to either get vaccinated or undergo weekly COVID-19 testing and wear a face covering in the workplace.

2. Determine Vaccination Status of Employees. Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, and maintain a roster and records of each employee’s vaccination status.

3. Support Vaccination of Employees. Employers must support vaccination of its employees by providing employees reasonable time (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 dose.

4. Ensure Testing of Unvaccinated Employees. Employers must ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if the employee is in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). The ETS does not require employers to bear the cost of regular testing for its unvaccinated employees, however, it is not yet clear if Minnesota Statutes, which require employers to pay for required testing, will require Minnesota employers to pay for mandatory COVID-19 testing of their employees.

5. Require Notice of Positive Tests or Diagnoses. Employers must require employees to promptly provide notice of a positive COVID-19 test or a COVID-19 diagnosis.

6. Remove Employees with COVID-19 From the Workplace. Employers must immediately remove from the workplace any employee, regardless of vaccination status, who has received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and the employee must be kept out of the workplace until return-to-work criteria are met.

7. Face Coverings. Employers must ensure that any employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in limited circumstances.

8. Provide Certain Information to Employees. Employers must provide each employee with information about the requirements of the ETS and workplace policies and procedures; vaccine efficacy, safety, and the benefits of vaccination; protection against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.

9. Report Work-Related COVID-19 Fatalities to OSHA. Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and employers must report work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization.

10. Recordkeeping and Inspection. Employers must make certain records available for examination and copying to an employee or an employee representative.

What is the Timeline for Compliance?

All requirements under the ETS, with the exception of the testing requirement, must be complied with within 30 days after November 5, 2021, making the 30-day compliance date December 5, 2021. Employers must comply with the testing requirement by 60 days after November 5, 2021, making the 60-day compliance date January 4, 2022).

Conclusion

Similar to most COVID-19-related policies and procedures, this ETS is subject to litigation and future developments, including the possibility that OSHA expands these requirements to smaller employers in the future. We will continue monitoring this ETS and provide updates as we know more about the standard and its implementation.

For covered employers, we can assist with developing the necessary policies required under the ETS and answering your questions regarding the ETS and implementation within your organization.  You can contact any of the employment law attorneys at Blethen Berens – Julia Ketcham Corbett, Beth Serrill, and Alyssa Nelson – for assistance with understanding the new ETS, development of compliant policies, and implementation within your organization.

Additionally, Julia Ketcham Corbett will be co-hosting a live webinar and Q&A for employers with our colleagues at Abdo on Thursday, November 11, 2021 from 11:30 a.m. – 1:00 p.m.  You can learn more about the webinar and register here. 

More guidance has been provided since this article regarding the ETS. Please see our insights section for the latest update from Blethen Berens.