On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) finally released its much-anticipated Emergency Temporary Standard (ETS) to increase the number of workers who have received a COVID-19 vaccine. OSHA is issuing this ETS in response to President Biden’s Sept. 9 directive to OSHA.

When will the ETS take effect?

The ETS will take effect immediately upon publication in the Federal Register.

Employers must comply with all requirements of the ETS within 30 days after the effective date, except for COVID-19 testing requirements for employees who are not fully vaccinated. Employers must comply with COVID-19 testing requirements for employees who are not fully vaccinated within 60 days from the effective date. 

Which employers are covered?

The ETS applies to private employers with 100 or more employees in all workplaces that are subject to OSHA’s authority and jurisdiction. 

The standard does not apply to workplaces covered under the (1) Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or (2) OSHA Healthcare ETS. 

What is required?

The ETS mandates that covered employers implement a vaccination policy that, among other things, requires employees to be vaccinated or tested on a weekly basis if they are in the workplace (or within seven days before returning to work when they have been away from the workplace for a week or longer). The ETS also requires businesses to give employees paid time off to get vaccinated and sick leave to recover from any side effects of the vaccine.

Are there any exemptions?

The ETS provides limited exemptions from employer vaccination policies for those employees (1) for whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination, or (3) who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices or observances that conflict with the vaccination requirement.

The ETS also does not apply to employees (1) while they are working from home, (2) if they do not report to a workplace where other individuals such as customers or co-workers are present, or (3) who work exclusively outdoors. 

How long will it be in effect?

After publication in the Federal Register, the ETS will remain in effect for six months. Within the six months, OSHA will have to go through the formal notice and comment rule-making process to create a more permanent standard.

How will OSHA calculate the 100-employee threshold?

Under the ETS, OSHA will calculate the 100-employee threshold to mean 100 employees company-wide, rather than per worksite.

Who pays for COVID-19 testing?

The ETS does not require employers to pay for the costs associated with COVID-19 testing. However, the ETS specifically acknowledges that employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. 

What are the penalties for noncompliance?

The most likely penalty for covered employers who do not comply with the ETS would be a serious citation, which carries a maximum fine of $13,653 per violation. Recurring offenders, however, could be charged with Repeat or Willful violations for noncompliance, which carry a maximum fine of $136,532 per violation.

More information

On Nov. 5, BakerHostetler will host a webinar that will cover the ETS in more detail. You can register here.