Breaking News! OSHA Issues COVID Vaccination/Testing ETS for Large Employers
By Sara J. Ackermann, Nicole L. Stangl and Mary Ellen Schill
November 4, 2021
OSHA’s Emergency Temporary Standard (ETS) is here! The ETS and related guidance can be found on its website. By December 5, 2021, employers must implement a vaccine policy in compliance with the ETS (choices are a hard mandate or a soft mandate) and advise employees as to whether or not testing will be an alternative (if the soft mandate is chosen by the employer). The hard mandate requires vaccinations for all employees with limited exceptions on account of disability or sincerely held religious belief. Those who do not get vaccinated are subject to discipline. The soft mandate allows for unvaccinated employees but those employees must wear masks onsite at all times AND get tested for COVID-19 every seven days. Masks are required for unvaccinated individuals (regardless of what policy the employer chooses) starting on December 5. By January 4, employees subject to the hard mandate must be vaccinated, and unvaccinated workers under a soft mandate will need to start the weekly testing. Other highlights are as follows:
Employee Count. Employers with 100 or more employees as of November 5, 2021, must comply. If an employer reaches 100 employees at any time while the ETS is effective, it must comply for the duration of the ETS. All employer locations are counted towards the 100–as well as all part-time employees. Entities that are related may be regarded as a single entity for the purposes of the ETS if they handle safety matters as one company. In that case, the employees of all the related entities would need to be aggregated.
Testing. Employers implementing the soft mandate must require unvaccinated employees to submit to weekly testing. Employees who work entirely remotely and never have contact with co-workers are not subject to the ETS’s testing requirement. However, such employees who occasionally report to a worksite must be tested seven days prior to the visit. The ETS does not require employers to pay for the tests. However, keep in mind that some states do have business expense reimbursement statutes that may apply.
Records. Employers must request evidence of vaccination status of all employees, regardless of whether the hard mandate or soft mandate is implemented. The employer must keep actual copies of all the vaccination records and test records submitted. Employers must also maintain a running log of every employee’s vaccination status, and whether they were granted a religious or medical exemption. (Employers who previously ascertained vaccination status but did not keep a copy of the vaccination record need not require said employee to resupply the actual record.)
Penalties. A citation for violating or failing to follow the ETS could result in a citation with a fine up to $13,653. If OSHA determines the violation is willful and the employer deliberately disregarded OSHA’s direction, the fine could be up to $136,532.
There are hundreds of pages of guidance on the ETS. If you have specific questions about how the ETS affects your organization, do not hesitate to contact a member of our COVID-19 Focus team!
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