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OSHA Releases Emergency Temporary Standard Requiring COVID-19 Vaccination and Testing for Large Employers

In the November 5, 2021 Federal Register, the Occupational Safety and Health Administration (OSHA) published its emergency temporary standard for COVID-19 vaccination and testing at large employers (100 or more employees). Large employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy.
Employers may adopt a policy that requires employees to either get vaccinated or choose to be regularly tested and wear a face covering at work. While this emergency temporary standard covers employers with 100 or more employees, OSHA may proceed with additional rules for smaller employers in the future. The rule is effective November 5, 2021. OSHA will accept public comments for 30 days.
OSHA’s emergency temporary standard (ETS) takes effect immediately and also serves as a proposal for a final standard. OSHA will accept comments on whether the standard should be adopted as a final standard. The ETS requires employers to either implement a policy mandating vaccination, or a policy that requires employees to either be fully vaccinated or be tested weekly and wear a face covering. The ETS does not require other workplace controls such as social distancing, barriers, ventilation, and sanitation. Covered employers must provide up to four hours of paid time and reasonable paid sick leave to support vaccination. However, the ETS does not require to pay for costs associated with regular testing or the use of face coverings for those employees that chose to remain unvaccinated. When determining whether an employer has 100 or more employees, employers must include all employees, including part-time employees, across all of their US locations, regardless of employees’ vaccination status or where they perform their work. For a single corporate entity with multiple locations, all employees at all locations are counted. In a traditional franchisor-franchisee relationship, the franchisor and each franchisee are separate entities for counting purposes. When staffing agencies place employees at a host employer location, the staffing agency counts the jointly-employed workers and not the host employer. At multi-employer worksites, such as a construction site, each company only counts its own employees. Once an employer is covered by the ETS the employer is subject to the ETS for the duration of the standard, even if it later drops below 100 employees. The ETS does not apply to workplaces coved by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. It also does not apply to settings where any employee provides healthcare services or healthcare support services while they are covered by the previous ETS. Those employers subject to the previous ETS and that have 100 or more employees will need to determine whether they also have employees covered by this vaccination and testing ETS, such as healthcare employers with more than 100 employees with a non-hospital ambulatory care facility. Even if employers are covered by the ETS, individual employees are not covered if they: (1) do not report to a workplace where other individuals such as coworkers or customers are present; (2) work from home; or (3) work exclusively outdoors. Employees who work from home are exempt only while they work from home. An employee who switches between telework and the office, or travels to settings where they meet coworkers or customers will be required to be vaccinated or tested, depending on the policy. Employers must require employees to promptly notify them when the employee receives a positive COVID-19 test or is diagnosed with COVID-19, regardless of vaccination status. The ETS requires employers to notify OSHA of the in-patient hospitalization without the requirement for the hospitalization to occur with 24 hours of the work-related incident, as is normally required in its recordkeeping and reporting standard. The compliance deadline for all requirements is 30 days after the effective, except for weekly testing of unvaccinated employees, which has a 60 day deadline from the effective date.

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