On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) for the purpose of minimizing the risk of COVID-19 transmission in the workplace.
The ETS establishes binding requirements to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 in the workplace.
OSHA Findings of Grave Danger
OSHA investigations found that unvaccinated workers face grave danger:
Unvaccinated workers are much more likely to contract and transmit COVID-19 in the workplace than vaccinated workers. OSHA has determined that many employees in the U.S. who are not fully vaccinated against COVID-19 face grave danger from exposure to COVID-19 in the workplace. This finding of grave danger is based on the severe health consequences associated with exposure to the virus along with evidence demonstrating the transmissibility of the virus in the workplace and the prevalence of infections in employee populations.
OSHA states “COVID-19 was not known to exist until January 2020, and since then nearly 745,000 people, many of them workers, have died from the disease in the U.S. alone.” Three Quarters of a million in this country alone in under two years. A staggering amount of deaths.
ETS Requirements
The ETS establishes minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace. The full report can be found at COVID-19 Vaccination and Testing ETS (osha.gov).
The key requirements as stated in the Summary COVID-19 Vaccination and Testing ETS publication by OSHA are:
- Vaccination. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing 3 employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.
- Determine vaccination status. Covered employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
- Employer support for employee vaccination. Covered employers must support their employee’s vaccinations by providing employees reasonable time to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose.
- COVID-19 testing for employees who are not fully vaccinated. Covered employers must ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if 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).
- COVID -19 Positive Tests. Covered employers must: (1) require employees to promptly provide notice when they receive a positive COVID_19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; (3) keep removed employees out of the workplace until they meet criteria for returning to work.
- Face coverings. Covered employers must ensure that each employee who is not fully vaccinated wears a face covering when indoors or occupying a vehicle with another person for work purposes, except in certain limited circumstances (e.g. interfering with the safe operations of equipment). By the same token covered employers may not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (e.g., interfering with the safe operation of equipment).
- Information provided to employees. Covered employers are required to provide employees with information in a language and level of literacy the employees understand, including:
- (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS;
- (2) the CDC document “Key Things to Know About COVID-19 Vaccines”;
- (3) information about protections against retaliation and discrimination; and
- (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
- Reporting COVID-19 fatalities and hospitalizations to OSHA. Covered employers must 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.
- Availability of records. Covered employers must make available for examination and copying an employee’s COVID-19 vaccine documentation and COVID-19 test results to that employee and to anyone having written authorized consent from that employee. Covered employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
Is Your Company Required to Follow the OSHA ETS?
The ETS is currently limited to employers with 100 or more employees. According to its statement:
OSHA is confident that employers with 100 or more employees have the administrative capacity to implement the standard’s requirements promptly, but is less confident that smaller employers can do so without undue disruption.
Within the covered industries, all employers that have a total of at least 100 employees corporate-wide, at any time the ETS is in effect, are covered.
There are a few exceptions. The standard does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in settings where employees provide healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (29 CFR 1910.502).
The ETS also does not apply to 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, or employees who work exclusively outdoors.
Effective Dates for ETS – Immediate
The ETS is effective immediately upon publication in Federal Register. To comply, employers must ensure provisions are addressed in the workplace by the following dates:
- 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination dose(s).
- 60 days after publication: Testing for employees who have not received all doses required for a primary vaccination.
All Companies Should Have an Employment Workplace Safety Plan.
Even if your company does not fall within the OSHA Emergency Temporary Standard, it is still a good idea to have policies and procedures in place to deal with issues of vaccinations, masks, communicable diseases and other workplace safety hazards beyond COVID -19.
If you have any questions regarding OSHA’s Emergency Temporary Standard or work place policies or procedures regarding Covid-19 or other workplace policy practice or procedures, please contact Kristin Tauras at McKenna Storer.
Kristin devotes a significant amount of her practice to employment and coverage law and is available to consult with your company.