On November 5, 2021, OSHA issued an Emergency Temporary Standard or ETS for COVID-19 vaccination and testing requirements in the workplace. To make the ETS a bit easier to understand we put together the following article which explains the ETS, who is covered (and who isn’t), what each covered employer is expected to do to become compliant with the requirements contained with the ETS, and how EHS Insight can help.
What is an Emergency Temporary Standard?
Unlike most other federal health and safety standards which go through a lengthy rulemaking process that can take up to several years to complete, an Emergency Temporary Standard takes effect immediately. Once issued, an ETS will stay in place until it’s no longer needed or until a permanent standard can be published.
For an ETS to be issued, OSHA has to justify the need to bypass the usual rulemaking process which is done by determining that workers are in grave danger from exposure to “toxic substances or agents determined to be toxic or physically harmful or to new hazards”. With this particular ETS, OSHA decided that COVID-19 posed a grave enough threat in the workplace that something more immediate was needed.
Who is Covered Under the ETS?
An employer is covered under the ETS if they employ at least 100 employees (as a whole) and if they fall under OSHA’s jurisdiction and authority. When determining whether a company has met the 100 employee threshold, companies should understand that the count is not based on the number of employees working at individual locations but rather on the total number of employees for the entire organization. In addition, employers should include the following workers in their counts:
- All full time and part-time workers
- Seasonal and temporary workers, provided they are directly employed by the employer and provided they are employed at any time while the ETS is in effect
- Employees who work remotely or from home
- Employees under the age of 18 who are considered “minors”
- Employees who are vaccinated and those who are unvaccinated
- Employees regardless of whether they are unionized or not
- S. Postal Service employees
Who is NOT Covered Under the ETS?
Employers falling under OSHA’s jurisdiction with fewer than 100 employees (company-wide), public employers in states without State Plans, and workplaces that are covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.
In addition, the following employees are not covered under the ETS, even if their employers are covered:
- Employees of federal agencies
- Employees working in healthcare settings that are covered by the Healthcare ETS (29 CFR 1910.502)
- Independent Contractors
- Employees who do not report to a workplace where other people (like customers or coworkers) are present or who work from home
- Employees who work exclusively outdoors (which means they must work outdoors every day, must not spend part of a day with coworkers driving from one location to another and must work outdoors with very little time spent indoors in places like public restrooms or dropping off paperwork in an office, etc.)
What Activities are Required by the ETS?
To be in compliance with the Emergency Temporary Standard, employers first have to decide how they want to comply. OSHA is giving employers a choice of either developing a mandatory policy requiring all employees to receive the COVID-19 vaccination OR developing a policy that allows employees to choose between receiving the COVID-19 vaccination or undergoing weekly COVID-19 testing and wearing a face covering at all times while in the workplace.
To be in compliance, employers must do the following:
- Determine which option works best for them & then develop, implement and enforce the corresponding written policy (please see OSHA’s Mandatory Vaccination Policy Template or OSHA’s Vaccination, Testing & Face Covering Policy Template)
- Collect acceptable proof of each employee’s vaccination and maintain a roster showing the status of each employee’s vaccination status
- Allow workers up to four hours of paid time to receive each vaccination dose
- After primary vaccination doses are administered, allow workers reasonable time and paid sick leave to recover should they experience any side effects
- For employers allowing workers to choose weekly testing, make sure unvaccinated employees are tested for COVID-19 at least weekly and within 7 days of returning to work after being away from the workplace for a week or longer
- For employers allowing workers to choose weekly testing, make sure all unvaccinated employees are wearing face coverings while indoors and while occupying a vehicle with others
- Require workers to provide notification if they receive a positive test result for COVID-19 or if they have been diagnosed with COVID-19
- Promptly remove any employee from the workplace (vaccinated or unvaccinated) who is either diagnosed with COVID-19 or who tests positive for COVID-19, keeping them out of the workplace until they’ve met company return to work requirements
- Provide information to the workforce, in a language and comprehension level they can understand about:
- The requirements of the ETS
- Workplace policies and procedures established for the purpose of complying with the ETS
- Information on the vaccine efficacy and safety of the vaccine
- What protections are available to combat retaliation and discrimination
- The laws and penalties that specifically target the spreading of false statements or documentation
- Within 8 hours report any COVID-19 fatalities which are deemed work-related directly to OSHA
- Within 24 hours of discovery, report to OSHA any COVID-19 related in-patient hospitalization that are deemed work-related
- When requested, ensure an employee’s vaccination documents and test results are made available for examination and reproduction by that employee and/or their representative
- If requested, provide an employee or their representative with the total number of workers and the aggregate number of fully vaccinated employees at that workplace
Compliance Time Frames
In general, employers have until December 5, 2021 (just 30 days after the date the ETS is published in the Federal Register) to be in compliance with the requirements of the ETS. Employers incorporating a testing requirement in lieu of mandatory vaccinations must comply with the testing part of the requirements by January 4, 2022.
We know this is a lot of information to take in and process. To help manage things, EHS Insight now has a COVID-19 vaccination and testing module that will relieve some of the burdens of collecting and managing documents.
EHS Insight COVID-19 Records Module
Customers of EHS Insight will be able to meet the requirements of OSHA’s ETS on Vaccination and Testing, including capturing the vaccination status of every employee, maintaining a register of that status, tracking test results if that is applicable. This new module also enables employee self-reporting, reducing the burden of the new requirement. For more information, visit EHS Insight COVID-19 Records Management.