OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard

NATSO continues to analyze the nearly 500-page proposed rule and will provide a more detailed analysis to members in coming days.
OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard

The Occupational Safety and Health Administration (OSHA) issued its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which establishes requirements for employers with 100 or more employees to ensure that employees are fully vaccinated or regularly tested for COVID-19 as of Jan. 4, 2022.

The rule also contains additional requirements for employers that take effect Dec. 5, 2021, including providing paid-time for employees to get vaccinated, masking for unvaccinated workers and compliance standards.

NATSO continues to analyze the nearly 500-page proposed rule and will provide a more detailed analysis to members in coming days.

Although this ETS takes effect immediately, it is only a proposal for a final standard. This means that OSHA is seeking public comment on all aspects of the ETS and how it would be adopted as a final standard.

Effective Jan. 4, employers with 100 or more employees must get employees vaccinated and require unvaccinated employees to produce a negative test on at least a weekly basis. Employers must ensure that their employees have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by Jan. 4. After that, all covered employers must ensure that any employees who have not received the necessary shots begin producing a verified negative test to their employer on at least a weekly basis, and they must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider.

The ETS applies to businesses with more than 100 employees regardless of their status as full-time or part-time employees. The ETS, however, does not apply to independent contractors or employees who do not report to a workplace where other individuals such as coworkers or customers are present; working from home; or who work exclusively outdoors. The ETS specifically states that it applies to the retail industry, delivery services and agriculture industries, among others.

OSHA stated that employers with 100 or more employees have the administrative capacity to implement the standard’s requirements promptly, but the agency is less confident that smaller employers can do so without undue disruption. It is important to note that OSHA said it currently is assessing the capacity of smaller employers to comply and is seeking public comment on this issue.

The ETS lays out a variety of tests that comply with the standard. The ETS does not require employers to provide or pay for tests. However, some employers may be required to pay for testing because of other laws or collective bargaining agreements.

>Employers are required to provide paid-time for their employees to get vaccinated, and, if needed, sick leave to recover from side effects that prevent them from working.

Employers also must ensure that all unvaccinated employees are masked while in the workplace or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.

With regard to compliance, employers are subject to requirements for reporting and recordkeeping. NATSO will share more detailed information about these reporting requirements, which are spelled out in the ETS.

Among the requirements, employers must 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.

It should be noted that the ETS requires employers to 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. Employers are also required to make available the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

NATSO will continue to analyze the proposed rule and provide additional information to NATSO members in coming days.

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