OSHA’s Emergency Temporary Standard Requires COVID-19 Vaccination or Weekly Testing in the Workplace

November 9, 2021

UPDATE:  In response to the Fifth Circuit’s order to stay the ETS, OSHA has announced that it will “suspend activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

The Occupational Safety and Health Administration (OSHA) published an emergency temporary standard (ETS) requiring private employers with 100 or more employees to implement a policy mandating COVID-19 vaccination or weekly testing unless a disability or religious accommodation is required.

As discussed below, OSHA’s ETS requires covered employers to develop policies on vaccination, testing, and face coverings no later than December 5, 2021. Although the Fifth Circuit has issued an order to stay the mandate, employers must prepare to comply with the OSHA ETS should the stay be lifted.

By December 5, 2021, OSHA’s ETS requires covered employers to:

  • Develop policies on vaccination, testing, and face coverings. Unvaccinated employees must wear a face covering in the workplace, subject to limited exceptions.

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination, and maintain vaccination records and a roster of employee vaccination status. In addition, certain records must be made available for examination and copying to an employee or their representative.

  • Provide employees with up to 4 hours of paid time off for each primary vaccination dose and paid sick leave to recover from side effects. Booster shots are not covered.

  • Ensure employees who are not fully vaccinated wear a face covering indoors or when occupying a vehicle with another person for work purposes, with limited exceptions.

  • Require all employees to promptly provide notice of a positive COVID-19 test or diagnosis, regardless of vaccination status, and ensure immediate removal of the employee from the workplace until return-to-work criteria are met.

  • Report work-related COVID-19 fatalities to OSHA within 8 hours, and in-patient hospitalizations within 24 hours, of the employer learning about them.

By January 4, 2022, any employee who is not fully vaccinated must be tested for COVID-19 at least weekly or within 7 days before returning to in-person work.

The ETS became effective on November 5, 2021, in the states where federal OSHA has jurisdiction. States with OSHA-approved state plans have up to 30 days to adopt the ETS or a regulation that is at least effective as the ETS.

How Clear Law Can Help

Many employers are faced with the difficult task of maintaining OSHA compliance, while at the same time, parsing out the details of potentially conflicting state laws.

Clear Law can help with this process by providing customized workplace policies, procedures, and forms necessary to implement the OSHA ETS that incorporate applicable state law requirements, such as those relating to workplace safety, face coverings, disability, and religious accommodations, paid time off, and the cost of testing.

To learn more about our COVID-19 Vaccination Policy Service and COVID-19 Safe Workplace Course, please contact us at [email protected].

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