Tomorrow COVID-19 ETS for Most Employers Becomes Effective!

BREAKING NEWS – November 4, 2021 – Today, the anticipated COVID-19 emergency temporary standard (ETS) was sent by The U.S. Department of Labor’s Occupational Health and Safety Administration (OSHA) to the Federal Register for publication. The ETS is effective immediately upon its publication in the Federal Register. Publication will take place on November 5, 2021. Employers must comply with most requirements within 30 days of publication and with the testing requirements within 60 days of publication. OSHA has made the 490 page unpublished ETS available for review today.  Tomorrow you will be able to view the full version of the ETS in the Federal Register.

What must employers do? Under the standard, covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

To which employers does the ETS apply? The emergency temporary standard covers employers with 100 or more employees which encompasses the number of employees throughout the company or firm.

What must covered employers pay for under the ETS? The ETS  requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects. The ETS does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings.

The ETS also requires employers to do the following:

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status.
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
• Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
• Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

OSHA is offering compliance assistance to help businesses implement the standard, including a webinar, frequently asked questions and other compliance materials.  The ETS will cover two-thirds of the nation’s private-sector workforce. In the 26 states and two territories with OSHA State Plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff.

OSHA will use the provisions of the ETS  as a proposal for normal rulemaking for a final standard. The agency is seeking comment on all aspects of this ETS and whether the agency should adopt it as a final standard. Regulatory Support Services will keep you posted. We are here to assist you in the implementation of this new standard. Contact us immediately if you have any questions or concerns.