On November 4, 2021, the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) announced its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which became effective as of November 5, 2021 upon its publication in the Federal Register.

The ETS establishes binding requirements on private firms and companies with 100 or more employees, as well as public sector workers employed by state and local governments in the 26 states (including California) with OSHA State Plans. The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.

The ETS is intended to preempt state and local laws and requirements, including those that ban or limit an employer from requiring vaccination, face covering, or testing.

Requirements for Employers

Broadly, the ETS requires covered employers to develop, implement, and enforce either (1) a mandatory COVID-19 vaccination policy, or (2) a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.  Covered employers are also required to:

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status;

• Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose;

• Ensure that each employee who is not fully vaccinated and who attends work at least once per week is tested for COVID-19 at least weekly, or if the employee has been away from the workplace for a week or longer, tested within seven days before returning to work.

• Implement policies that require employees to promptly provide notice when they receive a positive COVID19 test or are diagnosed with COVID-19, immediately remove any employee from the workplace (regardless of vaccination status) who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep removed employees out of the workplace until they meet criteria for returning to work;

• Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances, while also not preventing employees, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard;

• Provide employees information about the ETS requirements and workplace policies and procedures established to implement the ETS, the CDC document “Key Things to Know About COVID-19 Vaccines,” protections against retaliation and discrimination, and laws that provide for criminal penalties for knowingly supplying false statements or documentation;

• Report work-related COVID-19 fatalities to OSHA within eight hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization; and

• Make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee.

While employers are not required to pay for COVID-19 testing or face coverings, they may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Nothing prohibits employers from voluntarily assuming the costs associated with testing.

Important Deadlines and Penalty Provisions.

The deadline to comply with the ETS testing requirements is January 4, 2022. The deadline to comply with all other requirements of the ETS is December 5, 2021. OSHA has stated that the ETS may be updated based on continued monitoring of trends in COVID-19 infections and deaths. Accordingly, the ETS requirements may retract if the grave danger from the virus no longer exists or expand if new information indicates a change in measure necessary to address that danger. OSHA has also indicated that it is taking additional time to determine if the ETS will eventually apply to employers with less than 100 employees.

Posting requirement violations, as well as violations classified as “serious” or “other-than-serious,” may be subject to a $13,653 penalty per violation. Failure to abate a violation may be subject to a $13,653 penalty per day beyond the abatement date. Any willful or repeated violation may be subject to a $136,532 penalty per violation.

ETS Information and Resources

Further information and resources regarding the ETS, including fact sheets, FAQs, policy templates, and reporting guidelines are be accessed on OSHA’s website.

Call Hill Farrer for Further Questions

The ETS and its specific requirements are vast and complex. Please contact your Hill Farrer attorney or any member of our Labor and Employment department to discuss how the new standard may affect your business and your employees.