This morning, the White House announced that OSHA is issuing a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) that applies to employers with 100 or more employees ( “covered employers”). The White House summary of the ETS can be found here. The ETS is available here.
According to the summary, the ETS will require covered employers to do the following:
- Get their employees fully vaccinated by January 4, 2022.
- Require unvaccinated employees to produce a negative test on a weekly basis.
After January 4, 2022, any employees who have not received the necessary shots will be required to produce a verified negative test to their employer on at least a weekly basis. Covered employers must also remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider.
What is an OSHA Emergency Temporary Standard?
An ETS is different from other OSHA rulemakings in the following ways:
- The ETS is effective upon its printing in the Federal Register – meaning that it goes into effect immediately – in this instance on December 5th, with the vaccine requirements going into effect on January 4, 2022.
- There is no comment period on the ETS.
- It is by statute a temporary rule – lasting only six months.
- The standard for an ETS is a “grave danger” – meaning that the hazard being regulated must constitute a grave danger to employees. The term “grave danger” is not defined in the Occupational Safety and Health Act or in OSHA regulations.
Other key points:
- The ETS does not require employers to provide or pay for tests. However, employers may be required to pay for testing because of other laws or collective bargaining agreements.
- The ETS does require employers to pay for time off to get the vaccine or paid sick leave to deal with any negative effects of the vaccine.
- All unvaccinated employees must be masked at all times in the workplace.
- Compliance will be through record keeping requirements that are spelled out in the ETS.
- All other requirements of the ETS (except the requirement for testing of unvaccinated employees) begin on December 5, 2021.
Written by: Gordon M. Berger, Partner