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OSHA Issues Its Anticipated 100+ Employee ETS for Mandated Vaccines and Testing 

November 4, 2021

The much awaited OSHA Emergency Temporary Standard for employers with 100 or more employees (ETS) was unofficially released by OSHA today. Per OSHA, “[c]overed employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”  

Although released today, the ETS will be officially published tomorrow, November 5, 2021, triggering the countdown to two important compliance deadlines. With one exception, the compliance date for provisions in the ETS is 30 days after the official publication date.  The deadline for compliance with the provision which addresses COVID-19 testing for employees who are not fully vaccinated is 60 days from the official publication date. 

Employers covered under the new ETS have their work cut out for them to get into compliance with the new workplace law. Within 30 days of tomorrow’s publication, covered employers with at least 100 employees—determined by a company-wide count and not by location—must establish and accomplish a long list of “to do” requirements, including:

●        establish an ETS compliant written vaccination policy;

●        determine the vaccination status of each employee;

●        obtain acceptable proof of vaccination of those vaccinated;

●        maintain records and a roster of vaccination status;

●        provide employees with support for vaccination including providing a reasonable
           amount of time for each employee to obtain the primary vaccination doses, provide up
           to 4 hours of paid time off to be vaccinated, and provide reasonable time and paid sick
           leave to recover from side effects following each primary dose;

●        ensure employees who are not fully vaccinated wear face coverings when indoors or
           occupying a vehicle with others for work purposes;

●        distribute information to employees about vaccination efficacy, safety and benefits;

●        inform employee about workplace protection against retaliation and discrimination;

●        explain to employees the criminal penalties for knowingly providing false information;

●        begin reporting COVID-19 in-patient hospitalizations and fatalities to OSHA; and

●        must make certain records available to OSHA.

The anticipated 30 day deadline will fall on Sunday, December 5, 2021, which likely will roll over to Monday, December 6, 2021. 

The second anticipated deadline is January 4, 2022.  On or before that date, covered employers that choose to allow employees the option of weekly testing in lieu of vaccination must begin enforcing mandatory weekly testing for those employees who are not fully vaccinated. Some key points to testing, include:

●        Employees will be required to pay for their own testing.

●        Although over-the-counter antigen tests may be used, the tests may not be both self-
          administered and self-read unless observed by the employer or an authorized telehealth

●        Examples of tests that satisfy this requirement include tests with specimens that are
          processed by a laboratory (including home or on-site collected specimens which are
          processed either individually or as pooled specimens), proctored over-the-counter tests,
          point of care tests, and tests where specimen collection and processing is either done or
          observed by an employer.

The ETS does not apply to workplaces subject to EO 14042 on Requiring Coronavirus Disease 2019 Vaccination for Federal Contractors.  The ETS also does not apply to settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (29 CFR 1910.502). It also does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.   

In the coming days, the ETS will most likely be challenged in the courts.  However, employers with 100+ employees are encouraged to begin efforts to bring their companies into compliance within the deadlines currently pending as set by the ETS. 

If you need any assistance or have any questions regarding other issues, please contact your Hall Estill Attorney directly.