November 4, 2021 — The federal Occupational Safety and Health Administration (OSHA) officially filed its Emergency Temporary Standard (ETS) on Covid-19 Vaccination and Testing in the Office of the Federal Register. Though the scheduled publication date was November 5, 2021, the 490-page pre-publication package can be found here. The document includes both the premble and economic analysis of the regulation, however the regulatory text itself begins on page 473. 

Please note, section § 1910.501 of the ETS covers all employers with a total of 100 or more employees at any time this section is in effect. The count should be done at the employer level (firm- or corporate-wide), not the individual location level. Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted. For example, if a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.

The requirements of this section do not apply to:

More can be found at COVID-19 Vaccination and Testing ETS – Frequently Asked Questions | Occupational Safety and Health Administration (osha.gov)

The requirements of section § 1910.501 do not apply to the employees of covered employers:

  • Who do not report to a workplace where other individuals such as coworkers or customers are present;
  • While working from home; or
  • Who work exclusively outdoors.

The White House has released a fact sheet regarding the order, including requirements that employers subject to the ETS will need to make note of – 

  • “Get Their Employees Vaccinated by January 4th and Require Unvaccinated Employees to Produce a Negative Test on at Least a Weekly Basis: All covered 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 January 4th. 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 lays out the wide variety of tests that comply with the standard. Given that vaccines are safe, free, and the most effective way for workers to be protected from COVID-19 transmission at work, the ETS does not require employers to provide or pay for tests. Employers may be required to pay for testing because of other laws or collective bargaining agreements.
  • Pay Employees for the Time it Takes to Get Vaccinated: All covered employers are required to provide paid-time for their employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working.
  • Ensure All Unvaccinated Employees are Masked: All covered employers must ensure that unvaccinated employees wear a face mask while in the workplace.
  • Other Requirements and Compliance Date: Employers are subject to requirements for reporting and recordkeeping that are spelled out in the detailed OSHA materials available here. While the testing requirement for unvaccinated workers will begin after January 4th, employers must be in compliance with all other requirements – such as providing paid-time for employees to get vaccinated and masking for unvaccinated workers – on December 5th. The Administration is calling on all employers to step up and make these changes as quickly as possible.”

We expect the Cal/OSHA Standards Board to address this issue during its meeting on November 18. The Board may also impose different requirements than provided for by Fed OSHA as long as they are no less restrictive. One area we will be watching is the exemption for outdoor workers which is not currently included in the Cal/OSHA ETS. 

Source: Kahn, Soares & Conway, LLP

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