New OSHA ETS Affecting Private Businesses Sent to White House

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The Occupational Safety and Health Administration (OSHA) is expected to adopt a new COVID-19 Emergency Temporary Standard  (ETS) which will affect private sector companies with 100 or more employees.  This is in response to President Biden’s COVID-19 Action Plan which directs OSHA to adopt a new ETS.  The plan includes a mandate that all workers who work in businesses with 100 or more employees be either fully vaccinated or provide a weekly negative test before coming to work.

OSHA sent its proposed ETS to the White House Office of Information and Regulatory Affairs for final review on October 12th.  Hearings on the final rule began last week and will continue through October 19, 2021.  It includes penalties of up to $14,000 per violation.  The ETS could take effect immediately upon publication in the Federal Register.

The new proposed ETS will have a major impact on your business.  Although OSHA has not yet adopted the ETS, you should be preparing now to meet the requirements because it will take time to adjust the operational aspects of your business to the potential new ETS.

First, determine if the ETS applies to your business.  Keep in mind that the 100+ employee trigger is determined by the number of employees in the business overall, not just at specific locations.   If the answer is yes, then begin the process of deciding how you will tackle each associated issue.  These issues include:

  • Adjusting policy requirements
  • workplace testing strategies
  • vaccination management and tracking
  • medical record collection and retention
  • accommodations for religion, disability, and pregnancy
  • wage and hour implications
  • employee confidentiality and privacy issues.

Attorneys general in many states  are planning to challenge the ETS which will delay the process.   The State of Arizona has already filed a complaint against the Biden Administration over this mandate.   Nonetheless, your business should prepare for what is expected to be coming over the horizon very soon.

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