UPDATE: Jan. 31, 2022
The Occupational Safety and Health Administration is withdrawing the controversial ETS on COVID-19 vaccination, testing, and masking.
The notice for withdrawal, published in the Jan. 26 Federal Register, follows the 6-3 Supreme Court decision to halt enforcement of the ETS.
The ETS had mandated that employers with 100 employees or more were required to develop, implement, and enforce a mandatory COVID-19 vaccination policy or develop a policy that gives employees a choice to undergo weekly COVID-19 testing instead.
Is this the end of the ETS?
The agency stated, “Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule.”
The ETS as a proposed rule can still act as a proposal for a permanent standard, which is separate from the existing litigation. However, it requires the agency to undergo a formal rulemaking process with a notice and comment period.
What does this mean for employers?
OSHA continues to strongly encourage workers to get vaccinated against the dangers of COVID-19 in the workplace, and of course, employers can continue to implement testing and vaccinations policies.
For now, OSHA will continue to inspect worksites for COVID-19 safety under the current rules and standards, such as the COVID-19 National Emphasis Program, which targets high-risk industries and offers up housekeeping and respiratory standards.
OSHA can also evaluate workplaces under the general duty clause, under which all employers must provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
The COVID-19 Healthcare Standard
The agency also stated that it is “prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”
The COVID-19 Healthcare Standard focuses on protecting health care workers. However, OSHA withdrew the non-recordkeeping portions of that ETS on Dec. 27.
Workers in healthcare facilities must still be supplied with N95 respirators or other personal protective equipment when they’re indoors, in a vehicle for work purposes, or around people suspected of having COVID-19.
UPDATE: Jan. 13, 2022
The U.S. Supreme Court stayed OSHA’s emergency temporary standard on COVID-19 vaccination and testing with a 6-3 decision on Jan. 13.
The Supreme Court heard arguments on Jan. 7 on the ETS and decided to send the case back to the 6th U.S. Circuit Court of Appeals for a hearing on the benefits of the standard. Ultimately, the court’s decision could lead to another appeal to the Supreme Court, meaning the fight for the ETS is not yet over.
OSHA’s controversial ETS mandates that employers with 100-plus workers must develop, implement, and enforce a COVID-19 vaccination policy or create a policy that gives workers a choice between vaccination and undergoing weekly testing.
The Supreme Court’s majority contended that although COVID-10 is a risk in many workplaces, it’s not necessarily an occupational hazard. “COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”
The dissenting justices noted that while people can avoid going to crowded places such as sporting events or restaurants, they do not often have that same choice about going into a physical workplace and facing exposure.
The majority opinion did concede that targeted regulations would be permissible, such as with those who work in COVID-10 research or in “particularly crowded or cramped environments.”
Labor Secretary Marty Walsh responded to the decision, stating that OSHA “will do everything in its existing authority to hold businesses accountable for protecting workers.” He cited OSHA’s authority under the General Duty Clause and the agency’s COVID-19 National Emphasis Program.
The National Safety Council was also disappointed by the decision.
NSC President and CEO, Lorraine Martin, urged employers to consider still implementing vaccination policies: “Despite the Court’s ruling, we call on employers everywhere to take responsibility for the safety of their workers by implementing a requirement for vaccination or testing, and exhausting any and all proven safety countermeasures such as masking, frequent handwashing, improved ventilation systems, and regularly disinfecting work surfaces.”
UPDATE Nov. 8, 2021
On Nov. 5, the Occupational Safety and Health Administration officially published its much-anticipated emergency temporary standard on COVID-19 vaccination and testing.
Employers with 100 employees or more have until Dec. 5 to develop, implement, and enforce a mandatory COVID-19 vaccination policy, or develop a policy that gives employees the choice to undergo weekly COVID-19 testing instead.
OSHA estimates that the ETS will cover around two-thirds of private-sector workers, around 84 million people. It does not apply to employees who work solely from home, exclusively outdoors, or don’t report to a workplace “where other individuals are present.” This ETS overrules any state plans unless they are “at least as effective” as federal OSHA’s.
Employees who are covered under the standard have until Jan.4 to be fully vaccinated or get weekly COVID-19 tests. Employees who choose to go the route of weekly testing will still be required to wear a face-covering while indoors or in a vehicle with another person for work purposes.
What to expect between now and Jan. 4
This deadline gives employers time to determine the vaccination status of employers and get their documentation in order.
It also allows time for employees to get their required vaccine dosage — whether it’s only one dose or the first two. Employers are required to provide paid time off for workers to get their vaccine, up to four hours for each dose, as well as paid leave to recover from any side effects.
OSHA Deputy Assistant Secretary Jim Frederick said that many employers are already complying with the standard. The 100-employee threshold, he noted, was chosen as employers with that many workers will most likely have the administrative capacity to promptly implement the requirements of the ETS.
There is a 30-day comment period on the standard. OSHA is specifically seeking to learn more about the availability of employers under the 100 employee threshold to implement vaccination and/or testing; The employee threshold could be adjusted in the future.
Employer & Labor Practice Group Alert
To learn more about the ETS, check out the fact sheet, ETS summary, a set of frequently asked questions and answers, and sample policies for employers.
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UPDATE Monday, Oct. 18, 2021
OSHA is working quickly on an emergency temporary standard (ETS) on COVID-19 vaccination and testing in the workplace, according to acting agency administrator Jim Frederick.
Frederick provided several updates on OSHA efforts during an Oct. 7 webinar hosted by the National Safety Council. He did not provide a timeframe for when the ETS would be issued but said that it is being worked on “expeditiously.”
“We’re considering the scope and the terms of the potential ETS,” Frederick said. “We know that the pandemic will continue to evolve, and we’ll continue to monitor vaccination trend data, variants of the virus, and other factors that will guide our continued efforts to ensure workers are protected from the virus while they’re on the job.”
This update follows an announcement (shown below) from President Biden where he said that OSHA is working on an ETS that will require workplaces with at least 100 workers to be fully vaccinated or show proof of a negative test at least once a week.
“The bottom line: We’re going to protect vaccinated workers from unvaccinated co-workers,” Biden said. “We’re going to reduce the spread of COVID-19 by increasing the share of the workforce that is vaccinated in businesses all across America.”
Due to the timeframe of the ETS, there will not be public comment before it is published. Instead, it will act as a proposed rule, meaning there will be an opportunity for comments that could guide a permanent standard if OSHA chooses to enact one.
How to prepare for the ETS as an employer
- Take a formal headcount of employees – All private employers with 100 or more employees will be subject to the ETS. This number will be based on a company-wide headcount and will include all employees whether they are full-time, part-time, or on a temporary basis.
- Survey on vaccination status – By knowing how many employees are vaccinated, employers can better gauge whether weekly testing is a viable alternative to a blanket vaccination mandate. Also, by surveying employee sentiment on vaccinations, employers can determine the best way to communicate standards.
- Research testing – If employers want to opt for the weekly testing option, it’s a good idea to first understand the logistics of the available testing options such as rapid tests, PCR tests, and home testing kits.
- Create a written policy – A well-written policy should detail the requirements the employer has decided on for employees, as well as the consequences for non-compliance.
- Develop employee communications – Start communicating now. Consider sending out a memo to explain the upcoming ETS to employees to get a head start on vaccinations (or understanding possible staff exits).
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UPDATE Monday, Sept. 14, 2021
On Sept. 9, President Biden announced that OSHA is developing an emergency rule that will require workplaces with at least 100 workers to be fully vaccinated, or to have employees show a negative COVID-19 test at least once a week.
The announcement occurred on the same day that President Biden signed Executive Orders requiring federal employees and most federal contractors to be fully vaccinated. Medical facility workers, such as those who work in nursing homes, hospitals, and home health care, who treat Medicare or Medicaid patients, are also required to be vaccinated.
Additionally, this emergency rule requires these employers to provide workers paid time off to get the vaccine.
“The bottom line: We’re going to protect vaccinated workers from unvaccinated co-workers,” Biden said. “We’re going to reduce the spread of COVID-19 by increasing the share of the workforce that is vaccinated in businesses all across America.”
So how does this affect you as an employer? Let’s break it down.
Mandate overview: who it affects and how
The new plan — with measures used to accelerate urgent rules that’s only been implemented ten times over a 50-year span — supplements OSHA’s National Emphasis Program, which was updated July.
As per Forbes, the mandate focuses on four main groups of workers and employers:
- Private employers with 100-plus employees – Either vaccination or weekly COVID-19 testing is required, or else OSHA will issue fines of up to $13,600 per violation.
- Federal employees and contractors – 90% of federal workers will be required to get vaccinated, though the requirement does not apply to non-executive branch federal employees. Any government workers covered can no longer opt out of the vaccination by way of regular testing and social distancing.
- Teachers & staff from federal education programs: This group includes head start and early head start programs operated by the Bureau of Indian Education and the Department of Defense.
- Most medical facility workers: Those who work in nursing homes, hospitals, and home health care, who treat Medicare or Medicaid patients – approximately 17 million workers.
Religious or medical exemptions recognized by law will still be eligible. And, employers must give employees both paid time off to get the vaccine and to recover from any side effects.
The U.S. Department of Health and Human Services is set to create rules and to enforce the vaccination requirement for the federal education sector, while OSHA is currently in the process of updating its emergency temporary standard.
Currently, there is no set date for implementation, but it’s expected to go into effect within the next few weeks.
Some argued that a mandate would put an increased burden on already struggling business owners. While others such as Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health, called the mandate a “missed opportunity” to expand COVID-19 prevention plans to all workplaces.
If you’re looking for resources on how to implement a vaccine requirement or other safety measures can review resources from SAFER: Safe Actions for Employee Returns.
SAFER is an NSC initiative aiming to develop specific resources and recommendations for employees by industry and risk.
We’ll make sure to keep you updated with news and updates as they happen.
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