OSHA Has Issued Its Emergency Temporary Standard for Businesses with 100 or More Employees

OSHA’s long-awaited Emergency Temporary Standard (“ETS”) will be published in the Federal Register on November 5, 2021. The ETS applies to businesses with 100 or more employees, requiring them to either mandate the COVID-19 vaccine for all covered employees or adopt a policy requiring covered employees to elect between vaccination and regular testing and face masks. This article highlights the major provisions of the ETS:

• The ETS applies to all businesses with 100 or more employees. For purposes of determining a business’s headcount, all employees—regardless of their work location—are included, even part-time employees.
• The ETS does not apply to workplaces that are subject to the federal contractor vaccine mandate under Executive Order 14042 (“E.O. 14042”). Thus, if a federal contractor with 100 or more employees has a workplace that is not subject to E.O. 14042 because no employees working there perform work on or in connection with the covered contract, then that workplace will be subject to the ETS.
• The ETS does not apply to employers covered by OSHA’s Healthcare ETS.
• Covered employers must either:
  • mandate that all covered employees be vaccinated, or
  • provide proof of regular testing and wear a face covering when indoors or when occupying a vehicle with another person for work purposes. In most circumstances, “regular testing” will mean weekly testing.
• Employers may be required to reasonably accommodate employees who are not vaccinated as required under the Americans with Disabilities Act (for disabilities) and Title VII of the Civil Rights Act (for sincerely held religious beliefs) or who for medical reasons cannot be vaccinated.
• The ETS does not require the employer to pay for testing, but recognizes that state law may. In Virginia, employers are required to pay for any COVID tests they require.
• The ETS does not apply to employees who do not report to a workplace where there are other individuals (coworkers or customers), or who work from home, or who work exclusively outdoors.
• The employer must review and preserve proof of vaccination and testing results and must maintain a roster of each employee’s vaccination status.
• Employers must provide employees up to 4 hours of paid time at the employee’s regular rate of pay for the employee to get vaccinated, including travel time.
• Employers must provide “reasonable time and paid sick leave” for employees to recover from side effects experienced from vaccine doses. The ETS does not define “reasonable,” but OSHA’s “frequently asked questions” state that “OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement.”
• Employers must require employees to promptly notify the employer if the employee tests positive or is diagnosed with COVID-19. The employer must keep that employee out of the workplace until the employee meets certain return to work criteria.
• Employers must report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.
• Employers must inform all employees about the ETS, provide them with a copy of the CDC publication “Key Things to Know About COVID-19 Vaccines,” and inform them about the OSHA rules against retaliating against an employee for reporting work-related injuries or illnesses, complaining to OSHA, or exercising other OSHA rights.
• Employers must comply with the requirement of regular testing for unvaccinated employees by January 4, 2022, and with all other aspects of the ETS by December 5, 2021. OSHA anticipates that the ETS will remain in effect for 6 months.
• Violation of the ETS will subject the employer to OSHA citations and penalties, which can range up to $13,653 per violation or up to $136,532 for willful or repeated violations.

There are a lot of details to the ETS that are beyond the scope of this article. If you have questions about the ETS, or the federal contractor vaccine mandate, Vandeventer Black LLP’s labor and employment attorneys are available to assist your business.