Employers with 100 or more employees are now officially required under OSHA’s new emergency temporary standard (ETS) to have a mandatory COVID-19 vaccination policy, unless they require employees to either get vaccinated or undergo regular testing and wear a face covering at work.
However, employers aren’t required to pay for the testing of unvaccinated employees or for their face coverings.
The ETS “covers employers with 100 or more employees – firm or company-wide – and … requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects,” according to a Department of Labor news release.
Employers will also have to:
- determine the vaccination status of each employee, obtain acceptable proof of vaccination, and maintain records and a roster of each employee’s vaccination status
- require employees to give “prompt notice” if they test positive for COVID-19
- remove COVID-19 positive employees from the workplace, regardless of vaccination status and not allow them to return until they meet required criteria
- ensure unvaccinated workers – including those who aren’t fully vaccinated – are tested at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or more), and
- 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.”
What employers don’t have to pay for
Under the ETS, employers do not have to pay for testing unless it’s required under “other laws, regulations, collective bargaining agreements or other collectively negotiated agreements.”
Employers aren’t required to pay for face coverings.
OSHA is offering compliance assistance to help employers implement the ETS, including a webinar, frequently asked questions page and other materials.
The ETS is effective immediately upon its publication in the Federal Register which is currently scheduled for November 5, 2021.
Employers must comply with most of the requirements outlined in the ETS within 30 days of publication and with testing requirements within 60 days of publication (January 4, 2022).
Two-thirds of the private-sector workforce will fall under the ETS, and in the 26 states and two territories with OSHA state plans public sector workers, including educators and school staff, employed by state and local governments will also be covered.
This ETS is also serving as a proposal for normal rulemaking for a final standard, with OSHA seeking comment on all aspects of the ETS and whether it should adopt it as a final standard.
The unpublished version of the Federal Registry entry states that OSHA is also seeking comment on whether employers with fewer than 100 employees should also be covered by the ETS.