OSHA Issues Emergency Temporary Standard on COVID-19 Vaccines

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November 5, 2021

Client Alert
The Occupational Safety and Health Administration (OSHA) released its anticipated COVID-19 Vaccination and Testing: Emergency Temporary Standard (ETS), which will require that workers at large private sector businesses be vaccinated or undergo weekly COVID-19 testing. Employers will be required to comply with the ETS by January 4, 2022. The ETS is being released as a proposed rule subject to public comment on whether a permanent standard should be issued.

Applicability

The ETS is applicable to employers that have 100 or more employees at any time the standard is in effect. The rule does not apply to workers who: (i) are already subject to Executive Order 14042 on Requiring Coronavirus Disease 2019 Vaccination for Federal Contractors; (ii) work remotely 100% of the time; (iii) are in specified industries and who work exclusively outdoors; or (iv) are subject to the previously issued healthcare vaccine mandate. According to OSHA, the ETS preempts any state or local law that bans or limits employers from imposing vaccine or masking requirements regardless of the number of employees.

Requirements

Mandatory Vaccine Policy. Covered employers must develop, implement, and enforce a mandatory COVID-19 policy requiring that all workers either (i) be fully vaccinated against COVID-19; or (ii) undergo weekly COVID‑19 testing and wear a face covering at work. Despite providing for the testing option, OSHA “strongly encourages” employers to adopt a more restrictive policy that requires all employees to be vaccinated.

Employers subject to the ETS must, inter alia, require that their employees promptly notify them of a positive COVID-19 test or diagnosis and remove any employee who is positive for COVID-19 until such employee receives a negative test, meets the criteria for return to work set forth in the Center for Disease Control and Prevention’s (CDC) “Isolation Guidance,” or receives a recommendation to return to work from a licensed healthcare provider.

Vaccinated Employees. For vaccinated employees, employers must:

Employees Who Are Not Fully Vaccinated. For employees who are not fully vaccinated and who report to work where others are present:

Reporting and Recordkeeping.

Assuming it survives the onslaught of litigation that will likely be filed upon publication in the Federal Register, the ETS is expected to cover approximately 84 million workers. More than 17 million workers are already subject to a vaccination requirement applicable to the healthcare industry and the Administration has signaled that it will consider imposing vaccine/testing mandates on employers with fewer than 100 employees. Businesses who do not comply with the ETS are subject to fines up to $13,650 per violation.

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