COVID-19

Just Released: OSHA ETS Immediately Mandates COVID-19 Vaccine Policy For Employers

On November 4th, the Department of Labor released an unpublished version of the OSHA Emergency Temporary Standard (ETS). The ETS is effective immediately and will cover 2/3rds of private employers. The OSHA ETS puts into effect the Biden Executive Order mandating all private employers with 100 or more employees ensure their employees are vaccinated against COVID-19, or submit negative weekly tests. See the Leavitt Group prior articles on this topic, OSHA’s Mandate-or-Test Emergency Rule Gets Sent to White House for Final Review: How Employers Can Avoid Living in a Land of Vaccine Confusion; President Biden Announces Federal & Workplace Vaccine Mandates…Employers Soon Required to Ensure Employees are Vaccinated.

Executive Summary

Covered Employers

    • Private employers with 100 or more employees enterprise-wide (across US locations) at the time these rules become effective
      • Independent contractors not included
      • Special franchisee, construction and staffing agency rules
      • Companies who grow will move into the covered group
      • Exempts healthcare employers (already subject to their own mandates issued by CMS or various state laws)
    • State/local governments, including schools
    • Only state/local ordinances/laws that are not conflicting will have effect (i.e., if the state law prohibits vaccine mandates, OSHA ETS will supersede state law. OSHA ETS will be mandated.)
      • States with state OSHA plans may adopt these federal rules or similar rules. Some states are threatened with removal of state plan authority for failure to comply with laws as stringent as federal (e.g., UT & AZ)
    • Remote workers who never work in the office or meet coworkers or customers need not be vaccinate or tested weekly
      • If showing up to onsite workplace for any task, must submit negative test within seven days of reporting

Compliance Deadline

    • Within 30 days of publication (December 5)
    • Testing requirements within 60 days (January 4)

Only in federal OSHA states will the ETS become effective on the above dates. State OSHA plans have up to 30 days to adopt the federal ETS or alternative standards that are as effective. Where the employer operates in multiple states, they will have to comply with the patchwork of requirements for each state they have facilities.

Federal OSHA states: AL, AK, CO, CT, DE, FL,GA, ID, IL, KA, LA, MA, MS, MN, MO, MT, NE, NH, NJ, NY, ND, OH, OK, PA, RI, SD, TX, WV and WI.
State OSHA states: AL, AZ, CA, HA, ID, IO, KY, MD, MI, MN, NV, NM, NC, OR, SC, TN, UT, VT, VI, WA, and WY.

Federal law preempts conflicting state law. That means, if operating in a state like Texas, where state law bans vaccine mandates, covered employers must comply with federal law if subject to federal OSHA.

The ETS can only remain in effect for six months, after which, a permanent OSHA standard would have to be put in place. Any permanent standard must undergo formal rulemaking procedures with the typical notice and comment periods that last six months.

Mandate

Covered employers must ensure employees are vaccinated or submit weekly negative tests. The COVID-19 vaccination policy must be in writing and compliant with the ETS as a minimum. Employers may choose to be more restrictive.

    • Determine vaccination status of each employee
    • Unvaccinated must test negative weekly if worker in workplace at least once a week or within 7 days before returning to work if worker is away from workplace a week or longer
      • Must wear face covering indoors or in occupied vehicle for work
      • Employer not required to pay for testing unless required by law or collective bargaining agreement
      • Employer not required to pay for face coverings
    • Notice
      • Employee must promptly notify of positive COVID test or receive diagnosis
        • Employer must remove employee from workplace, regardless of vaccination status
        • May not return to work until meeting criteria
    • Must provide paid time off for vaccination and recovery from side effects

Covered employers failing to comply during the ETS period could face penalties of up to $13,653 per violation with additional penalties possible as determined by OSHA or state OSHA for willful or egregious failure to comply.

Resources

Leavitt Group will soon be releasing a full analysis of  the OSHA ETS. Be sure you are subscribed. Other related articles may also be found at the Leavitt Group COVID-19 Resource Center. Including an article that may be interest to employers – How Employers Can Handle Confidentiality and Privacy Concerns Related to Collecting COVID-19 Vaccine Information.

OSHA is offering robust compliance assistance to help businesses implement the standard, including a webinar, frequently asked questions and other compliance materials.

Fisher Phillips is the Leavitt Group preferred partner for employment law. If needing employment law assistance in implementing these new rules, contact your Leavitt Group representative so they can connect you in order to receive the Leavitt Group arrangement.

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