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November 4, 2021
The Occupational Safety and Health Administration has issued the anticipated emergency temporary standard (ETS) regarding its COVID-19 vaccine mandate. The core of the standard will require employers with 100 or more employees to mandate that employees either be vaccinated or submit weekly COVID-19 tests to be permitted to work. The ETS will be published on November 5, 2021, and employers are required to comply with most provisions within 30 days of publication.
OSHA says that the ETS is “necessary to protect unvaccinated from the risk of contracting COVID-19 at work.” As you are probably aware, a large part of the population is resistant to these vaccines for a variety of reasons. This fact makes OSHA’s latest set of rules highly controversial. Several legal challenges are already being filed. We will give updates as these challenges progress through the courts.
Which Employers are Covered by the Vaccine Mandate?
All private employers with 100 or more employees are subject to the ETS. The employee count is at the firm or corporate level, not a per-location level. State OSHA programs will be required to adopt a standard at least as effective as the Fed OSHA standard. State and local government employers, as well as private employers, with 100+ employees, will be covered by the standard in these states.
Workplaces Exempt from the ETS
There are a few types of workplaces that are not covered by the standard. These include:
- Workplaces covered under the “Safer Federal Workforce Task Force COVID-19 Workplace Safety Guidance for Federal Contractors.”
- Workplaces that are subject to the Healthcare ETS (section 1910.502) that was issued earlier this year.
- Employers with fewer than 100 employees.
- Public employees in states without State Plans.
Situations Where Employees are Exempt within a Covered Employer
Fortunately, there are a few sensible exemptions for employees who work in low/no-hazard environments. The requirements of the ETS do not apply to employees who:
- do not work where others are present.
- work from home.
- work exclusively outdoors.
What Are the Requirements of the Vaccine Mandate Standard?
There are ten key requirements for employers under the ETS.
- Employers can choose to either mandate that employees vaccinate, or allow employees to elect to vaccinate or undergo weekly COVID testing and wear face coverings. The employer must develop, implement, and enforce a written policy. Sample written policies can be found on the ETS information page.
- Determine the vaccination status of all employees, and obtain “acceptable proof” from each employee. This proof can be a vaccination card, medical record, or even a written attestation from the employee. Vaccination records must be maintained, as well as a roster of each employee’s vaccination status. This information must be kept confidential. No guidance has been found on how to implement these rules without sacrificing confidentiality.
- Support vaccination by providing paid time off to obtain vaccinations and recover from side effects.
- Ensure that all unvaccinated employees are tested for COVID-19 at least weekly (if in the workplace at least once per week). If an employee has been away from the workplace for a week or longer, they shall be tested within seven days of returning to the workplace.
- Require employees to promptly provide notice if they have received a positive COVID test or diagnosis.
- Immediately remove employees who have been diagnosed or tested positive for COVID from the workplace. The employer must exclude such employees from the workplace until return to work criteria are met. This applies regardless of vaccination status.
- Employees who are not fully vaccinated are required to wear face coverings when indoors or occupying a vehicle with other employees.
- Provide information to each employee about the ETS, company policies regarding the ETS, vaccine benefits and safety (click here for OSHA’s recommendation on this), protection from retaliation and discrimination, and criminal penalties for knowingly supplying false statements or documents.
- Report any work-related COVID fatalities to OSHA within 8 hours of learning about them. Employers must also report any in-patient hospitalizations within 24 hours.
- Make certain records available to employees or their representatives. Written programs and counts of vaccinated employees must also be provided to OSHA upon request.
OSHA State Plans will be implementing similar standards in their respective states in short order. Regardless of your political and moral opinion of this regulation, it is important to know what is coming with this ETS. OSHA has promised aggressive enforcement with significant fines for failure to comply. More detailed information can be found on OSHA’s information page for the ETS.