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OSHA Issues Emergency Temporary Standard on Coronavirus

 

The Occupational Safety and Health Administration has announced a new emergency temporary standard to protect workers from the spread of the coronavirus on the job. The emergency temporary standard covers employers with 100 or more employees – firm or company-wide – and provides options for compliance. The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.

The ETS requires covered employers to do the following:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee's vaccination status.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The emergency temporary standard does not require employers to pay for testing. However, employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings.

According to a statement from the White House, employers have until January 4, 2022, to get their workers vaccinated. This statements also said that "new rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing."

The Society for Human Resource Management says that the ETS is expected to cover about two-thirds of private-sector employees (more than 76 million workers), working at about 123,000 companies.

The statement itself runs nearly 500 pages—this is just a summary of the key points. Further guidance and changes are likely to come, so companies should keep a close eye on future releases from federal and state agencies and get qualified legal advice.

Legal updates

The U.S. Court of Appeals for the Fifth Circuit had temporarily suspended the mandate. Subsequently, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard.

To account for any uncertainty created by the stay, OSHA has said it is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA says it will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA promises to work closely with the regulated community to provide compliance assistance.

 

 
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