The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced a new emergency temporary standard (ETS), requiring private employers with 100 or more employees–firm or company-wide–to 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.
According to the National Marine Manufacturers Association website, the first compliance deadline for employers–providing time off for workers to get inoculated and ensuring those who are not vaccinated are wearing masks–is Dec. 5, 2021. Workers must be fully vaccinated by Jan. 4, 2022 or submit to regular testing.
Key requirements for employers under the ETS:
- 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 seven 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.
- Provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
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 not enforcing the ETS could be cited by OSHA and face a fine of up to $13,653 for each serious violation. A willful violation–described as an employer deliberately disregarding the mandate–could lead to a fine as high as $136,532.
Implementation of the standard in any of the 22 states with their own worker safety agencies for private industry could be delayed as governments decide whether to accept the standard as written, modify it, or draft an equivalent or more protective rule. Each state has 30 days to implement a standard.
OSHA is offering compliance assistance to help businesses implement the ETS, including a webinar, frequently asked questions and other compliance materials. The ETS also serves as a proposal for normal rulemaking for a final standard, and OSHA is seeking comment on all aspects of the ETS and whether the agency should adopt it as a final standard.
Separately, earlier this week the Biden Administration issued new FAQs for Executive Order (EO) No. 14042, which requires vaccinations–without the alternative of regular testing–for federal contractors and workers by Jan. 4, 2022.