Written (& Updated) By ESR News Blog Editor Thomas Ahearn
On November 5, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a rule in the Federal Register for an Emergency Temporary Standard (ETS) for COVID-19 Vaccination and Testing that will require employers with 100 or more employees to protect more than 84 million workers from the Coronavirus (COVID-19) by complying with the ETS by January 4, 2022, according to a news release from OSHA.
Update: OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9.
Litigation Update: On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
Comment Period Update: The ETS on Vaccination and Testing was published in the Federal Register on November 5, 2021. The ETS also acts as a proposal for a permanent standard and OSHA has decided to extend the comment period for that rule by 45 days. Written comments on any aspect of the ETS must now be submitted by January 19, 2022, to www.regulations.gov in Docket number OSHA-2021-0007.
“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” U.S. Labor Secretary Marty Walsh stated in the news release. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19. Many businesses understand the benefits of having their workers vaccinated against COVID-19.”
Unvaccinated workers face danger from workplace exposure to COVID-19 and immediate action is needed to protect them. Under the ETS, 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. The ETS from OSHA also requires employers to:
- 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.
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. Leading companies have taken similar actions in recent months – adopting vaccine requirements or regular testing as necessary measures to protect their workers and customers.
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. Employers must comply with testing requirements within 60 days of publication – January 4, 2022. OSHA is seeking comments on all aspects of the ETS.
Since 2020, COVID-19 has led to the deaths of 750,000 people in the U.S., and the infection of millions more, making it the deadliest pandemic in the nation’s history. Many of the people killed and infected by this virus were workers whose primary exposures occurred at their jobs. OSHA estimates that this rule will save thousands of lives and prevent more than 250,000 hospitalizations due to workplace exposure to COVID-19 during the ETS.
The ETS is effective immediately upon its publication in the Federal Register. Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication – January 4, 2022. The ETS also serves as a proposal for normal rulemaking for a final standard. OSHA is seeking comments on all aspects of this ETS and whether the agency should adopt it as a final standard.
Under the Occupational Safety and Health (OSH) Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees and OSHA’s role is to help ensure these conditions for America’s workers. To help businesses implement the ETS, OSHA is offering a webinar, frequently asked questions (FAQs), and other compliance materials. To learn more about OSHA, visit www.osha.gov.
Coronavirus (COVID-19) is a potentially deadly respiratory illness that spreads from person to person. As of November 9, 2021, there are approximately 250 million global cases and 5 million global deaths, while the United States leads the world with approximately 46 million cases and 755,000 deaths, according to research by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU).
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