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OSHA Emergency Temporary Standard

On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) issued details regarding the Emergency Temporary Standard (“ETS”) that requires employers with 100 or more employees to mandate either proof of vaccination or weekly COVID testing and masking.

Below is a summary of the ETS requirements.

WHO:            

Employers with 100 or more employees, unless federal contractor or healthcare facility covered by a separate federal vaccine mandate.

  • 100 employees in total, not at any one site
  • Full time and part time counted
  • Contractors are not counted toward the total
  • While they must be counted to determine 100+ threshold, the ETS requirements do not apply to:
    • Individuals who do not report to a workplace where others are working
    • Individuals working from home
    • Individuals who work exclusively outdoors

WHAT:          

  • Ensure that all workers are vaccinated OR undergo weekly testing and wear a facemask that meets OSHA criteria.
  • Develop and communicate a mandatory COVID vaccination or test and mask policy for the workplace. 
  • Employer must record proof of COVID vaccination status* for employee to forego weekly testing and masking. Proof of vaccination includes:
    • Vaccination record from a health care provider or pharmacy
    • Copy of a vaccination card
    • Copy of medical records verifying the vaccination(s)
    • Similar sort of record from a healthcare provider which includes information on the provider and clinic site.
    • May get a signed attestation in lieu of a lost record, but note there are severe criminal penalties for perjury.               

* Fully vaccinated refers to either two doses of Pfizer or Moderna vaccines, or one dose of Johnson & Johnson. Boosters have not yet been deemed a requirement to be considered fully vaccinated.

Proof of vaccine status for the purposes of enforcing the ETS is not subject to the OSHA 30-year retention requirement.

  • Employees who do not provide proof of vaccination must undergo weekly testing and wear facemasks while on work premises.
    • Employees may be required to pay for testing, unless state law or union agreements prohibit this.
    • Facemasks may be removed:
      • When eating or drinking
      • For identification purposes
      • When working alone in a fully enclosed room
      • When wearing a respirator or facemask
      • Situations where the employer can show it creates a bonafide hazard.
  • A 90-day exemption from testing can be granted for those who get a COVID diagnosis or positive test result.
  • Anyone who tests positive must not be allowed at the workplace for 10 days or until symptoms subside (if they last beyond 10 days).
  • Employers must pay for up to four hours additional PTO for employee to be vaccinated for each dose, as well as an additional “reasonable amount” of PTO for those who have significant reactions. 

WHEN:       

  • Effective December 5, 2021, employees who do not provide proof of vaccination must wear face masks and undergo weekly testing.
  • Effective December 5, 2021, paid time for vaccinations and/or recovery
  • Vaccinations must be completed by January 4, 2022.
  • States with their own OSHA programs have until December 5, 2021 to implement their own rules “as effective or more effective” than the federal rules. Employers in the 22 states with OSHA state plans should stay tuned for developments to see if their state adopts the federal OSHA ETS or adopts a more stringent mandate. Click here for a map of states with OSHA state plans: https://www.osha.gov/stateplans/.

PENALTIES: $13,653 per violation – unknown or unintentional noncompliance and $136,532 per violation – for willful noncompliance

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