Federal workplace safety officials just released the mandate-or-test workplace vaccine emergency rule, and employers are sure to have questions.
The Emergency Temporary Standard (ETS) developed by the Occupational Safety and Health Administration (OSHA) will require all covered employers with 100 or more employees to either mandate their workforce receive the vaccination against COVID-19 or test them weekly to ensure they are not infected.
This is a comprehensive series of Frequently Asked Questions about the ETS – released November 4, 2021, and with an effective date of November 5, 2021 – that will enable you to expertly navigate this new requirement.
What is an “ETS”?
The OSH Act permits the agency to issue an Emergency Temporary Standard (ETS) it can enforce immediately if it arrives at the conclusion that a “grave danger” to worker safety exists. For this reason, the rule did not go through the typical notice-and-comment period that federal regulations usually follow.
What does the ETS require?
Generally, OSHA’s ETS requires private employers with more than 100 employees to either mandate covered employees be fully vaccinated against COVID-19 or require covered employees that are not fully vaccinated to test for COVID-19 at least weekly and wear a face covering.
As part of OSHA’s ETS, employers must also:
- Establish, implement, and enforce a written policy on vaccines, testing, and face coverings.
- Provide certain information to employees on vaccines and the requirements of the ETS.
- Provide paid time off to employees to obtain the vaccine and reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination series dose to each employee for each dose.
- Obtain and maintain records and roster of employee vaccination status.
- Comply with certain notice requirements when there is a positive COVID-19 case and reporting to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.
What are the ramifications for non-compliance?
Covered employers who ignore the ETS while it is in effect could face OSHA citations and penalties of up to $13,653 per violation, and additional citations or penalties as determined by OSHA or state OSHA for willful or egregious failures to comply. This means a covered employer could face a penalty of that amount for each facility, area within a facility, or each employee within a facility. In addition to OSHA citations and penalties, covered employers may face potential exposure for individual whistleblower, retaliation, negligence and other claims potentially asserted by employees.
How long will the ETS be in place?
The ETS takes effect on November 5, 2021. Enforcement begins December 5, 2021, for all portions of the ETS other than testing and vaccination compliance date, which starts January 4, 2022.
The ETS can only remain in place for six months. After that time, it must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process involving a typical notice-and-comment period during that six-month period.
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This information has been prepared for UBA by Fisher & Phillips LLP. It is general information and provided for educational purposes only. It is not intended to provide legal advice. You should not act on this information without consulting legal counsel or other knowledgeable advisors.