The federal Occupational Safety and Health Administration (OSHA) released its anticipated emergency temporary standard (ETS) today requiring employees in private companies with more than 100 workers to be vaccinated against COVID-19 or undergo weekly testing.

The ETS will take effect Nov. 5, 2021, with publication in the Federal Register. Employers must comply with most requirements within 30 days and with testing requirements within 60 days of publication. The agency estimates the temporary standard will be in effect for about six months. The ETS will provide the basis for rulemaking on a final standard if the agency decides to move in that direction with input from stakeholders.

The temporary standard affects about two-thirds of the private U.S. workforce, or about 84 million employees. OSHA estimates the rule will save thousands of lives and prevent more than 250,000 hospitalizations due to workplace exposure to COVID-19.

Under the ETS, covered employers must 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. Covered employers will be required to:

• Provide employees 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. (WorkCare suggests obtaining a medical opinion on the severity of side effects, which may include temporary discomfort at the injection site, fatigue, headache, fever and/or chills.)
• 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.
• 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.
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must remove infected employees from the workplace, regardless of vaccination status, and not allow them to return to work until they meet required criteria.
• 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.

Employers will not be required to pay for testing or face coverings. However, they may be required to pay for testing to comply with other laws, regulations or collectively negotiated agreements.

According to OSHA, the standard is intended to preempt states, and political subdivisions of states, from adopting and enforcing workplace requirements relating to these issues, except under the authority of a federally approved state plan (e.g., state-run agencies). OSHA said it will preempt any state or local requirements that ban or limit an employer from requiring vaccination, face covering or testing. (Additional information on the preemption of state and local laws is contained in Section VI.A. of the ETS preamble.)

“While vaccination remains the most effective and efficient defense against COVID-19, this emergency temporary standard will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus,” said Jim Frederick, OSHA’s newly appointed director. “As part of OSHA’s mission to protect the safety and health of workers, this rule will provide a roadmap to help businesses keep their workers safe.”

To learn more:

• Refer to OSHA’s related webinar, frequently asked questions and other compliance materials.
• Refer to WorkCare’s monthly COVID-19 webinar, which featured Q&A on the ETS with Dr. Anthony Harris.
• Write to info@Workcare.com for information about WorkCare’s suite of COVID-19 prevention and management solutions for employers.