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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.
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:
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:
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:
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.
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.
Katy Lyden is a EHS Domain Analyst and Subject Matter Expert for StarTex Software, the company behind EHS Insight. Prior to her current role, Katy spent 17 years successfully leading EHS programs for several large companies within the manufacturing industry. Katy is a Navy veteran, Licensed Emergency Medical...
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