November 4, 2021

Federal OSHA Publishes Emergency Temporary Standard

 

Federal OSHA filed a notice with the Federal Register on November 4, 2021, announcing a new emergency temporary standard to protect more than 84 million workers from the spread of coronavirus on the job.  Under the standard, 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.  

Coverage

The emergency temporary standard covers employers with 100 or more employees – firm or company-wide – and provides options for compliance.  The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.

There is a provision in the ETS that states that employees who work exclusively outdoors are NOT covered. 

The Frequently Asked Question document on this issue states:   

  • Employees must work outdoors on all days (workers who work indoors on some days and outdoors on other days would not be exempt from the ETS).
     
  • The employee must not routinely occupy vehicles with other employees as part of work duties (i.e. do not drive to worksites together in company vehicle).
     
  • The employee works outdoors for the duration of every workday except for de minimus use of indoor space where other individuals may be present – such as multi-stall bathroom or an administrative office – as long as the time spent indoors is brief, or occurs exclusively in the employee’s home (e.g. a lunch break).

The employee’s work must truly occur “outdoors”, which does not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite.

ETS Requirements

The ETS requires that employers:

  • 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.

  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis.  Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
     
  • Ensure each worker that 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 7 days before returning to work (if the worker is away from the workplace for a week or longer).
     
  • 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.

Payment for testing and face coverings

The ETS does not require employers to pay for testing.  Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements.

Employers are also not required to pay for face coverings.

ETS effective date

The ETS is effective immediately upon its publication in the Federal Register.  Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication.

ETS serves as basis for final standard

The ETS also serves as a proposal for normal rulemaking for a final standard.  OSHA is seeking comment on all aspects of the ETS and whether the agency should adopt it as a final standard.

What about California employers?

On November 5, 2021, inquiries were made with the Deputy Chief Cal/OSHA and the Executive Officer of the Cal/OSHA Standards Board as to what action the state will take and the timeline for such action.  The Cal/OSHA Standards Board must adopt the ETS or “at least as effective as” measures within 15-30 days.


Resources for Employers, Employees, and Labor Organizations

The federal ETS and related materials can be accessed at www.osha.gov.

Of particular interest are:

The full Federal Register Notice can be reviewed here:  https://www.federalregister.gov/public-inspection/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard

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by Brooke Fishel, Director of Labor Relations