After weeks of anticipation, on Thursday, November 4, 2021, OSHA issued its Emergency Temporary Standard (ETS) mandating COVID-19 vaccinations or weekly testing requirements applicable to private sector employers with 100 or more employees. The requirements will be effective as of Friday, November 5, with a compliance deadline for most provisions (i.e., providing paid time off to employees to receive the vaccine and implementation of masking requirements for unvaccinated workers) on December 5. The mandated testing requirement is required to be in place by January 4, 2022. The 490-page ETS provides extensive details regarding compliance, but the notable highlights include the following:
- The requirements apply to private sector employers with 100 or more employees company-wide, with the exception of those employers already covered by previous rules for federal contractors and subcontractors, those covered by OSHA’s Healthcare ETS issued in June 2021, and employers with fewer than 100 employees as of November 5.
- The ETS does not apply to employees who do not report to a workplace where other individuals (such as coworkers and customers) are present, employees while working remotely, and employees who work exclusively outdoors.
- Covered employers must develop, implement, and enforce a mandatory vaccination policy, with an exception for employers to establish, implement, and enforce a policy allowing for employees to elect to undergo weekly testing and wear a face covering in the workplace. The employer is not obligated to pay for the costs of testing for employees who elect that option. Unvaccinated workers must wear masks while indoors or while driving for work with another occupant in the vehicle.
- Covered employers must provide employees “reasonable time,” including up to four (4) hours paid time, to receive any required vaccine dose, as well as paid sick leave (in an undesignated amount) to recover from any side effects following each vaccine dose.
- Covered employers must determine the vaccination status of all employees, obtain sufficient proof of vaccination, and maintain records of vaccination and a roster of each employee’s vaccination status.
- Covered employers must continue to adherence to COVID-related safety protocols for those employees testing positive (i.e., removal from the workplace and quarantine protocols).
- Twenty-two states with OSHA-approved plans, including Indiana, are required to accept the standard as written, modify the standard or propose an equivalent or more protective rule. These states will have a period of 30 days in which to adopt a comparable standard.
Failure to implement and/or enforce the requirements of the ETS could result in potential citation and/or fines of up to $13,653 for each serious violation. Willful violations could result in a fine as high as $136,532. The OSHA standard can last up to six (6) months after which it must be replaced with a permanent federal regulation. It is anticipated that several legal challenges will be made to the legality of the ETS.
The published rule is available at https://www.federalregister.gov/public-inspection/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard. OSHA has also published a Summary and Fact Sheet available at https://www.osha.gov/coronavirus/ets2 addressing the various components of the ETS.
We will continue to monitor any developments as they occur. In the meantime, the attorneys in the Labor and Employment Group of Bose McKinney & Evans are available to answer your questions and provide guidance regarding the impacts of these changes.