U.S. Department of Labor delivers Emergency Temporary Standard to help protect workers from COVID-19

On November 4, OSHA published their promised Emergency Temporary Standard (ETS) for workers safety from COVID-19. This far reaching ETS will cover nearly two-thirds of the nation’s private sector employees. This newly published ETS will also apply to public sector employees employed by state and local governments (including educators and school staff) in those 26 states and two territories with OSHA state plans. The ETS “heavily encourages” workers to become fully vaccinated but does leave an option for weekly testing if vaccinations are not fully completed for a worker. OSHA is very quick to point out that the ETS is not a vaccine mandate because it does offer the testing option, although the employer is not required to pay for testing. The lack of a requirement for employers to pay for testing could lead to a considerable weekly expense to any not fully vaccinated worker and is seen by many as a not-so-subtle attempt to encourage as many workers as possible to become fully vaccinated.

Some of the key takeaways from the newly published ETS include:

• The ETS only covers employers with 100 or more employees. The 100-employee threshold should be considered as an organization wide count and not counted from facility to facility for those with multiple sites.
• Organizations that were covered by the previous ETS for Healthcare are exempt from this new ETS but must continue to abide by the previous requirements. The previous Healthcare ETS still does not include an option of testing for those who refuse vaccination.
• The deadline for employers to implement the requirements of the ETS is January 4, 2022. By that January deadline, all affected organizations must ensure that employees are fully vaccinated or that they are tested for COVID-19 at least once a week.
• Employers must provide paid time off for vaccinations and recovery for any workers who experience vaccination side effects.
• The ETS does not require employers to pay for the weekly testing of unvaccinated workers. Those expenses including travel time and any related expenses are the responsibility of the worker (unless the employer chooses to cover these costs as a courtesy or as part of a collective bargaining agreement).
• Workers who are fully vaccinated are not required to wear face coverings as long as they are not required by local or state regulations. All workers who are not fully vaccinated must wear face coverings when they are indoors or in a vehicle with other. Those not fully vaccinated are not required to wear them when they are alone inside a closed room within a building, when wearing a respirator or for short periods while eating or drinking.
• The January 4 deadline for all employees (clinical and non-clinical) of healthcare facilities that receive federal funding for Medicare or Medicaid is still in place, but that vaccine mandate does not allow the testing component in lieu of becoming fully vaccinated.
• The deadline for the vaccine mandate for federal contractors will now be pushed back until January 4, 2022, the White House announced on Thursday. The previous deadline to federal contractors’ complete vaccinations or request exemptions was December 8.
• Employers that fail to gain full compliance with the standard by the January 4 deadline could be subject to OSHA fines of $13,653 per employee. These fines could increase daily with repeat violations potentially costing employers another $13,653 per day. If OSHA deems an employer to be in willful violation of the ETS, they could be subject to even higher fines of up to $136,532 per citation.

OSHA has developed a variety of ETS compliance tools to help employers including written policy templates, vaccination or testing and face coverings policy samples and a variety of other documents aimed at helping with complying with this new ETS. Many states have pledged to engage in legal challenges to the proposed ETS even before it was published, several state Governors have already directed their Attorney Generals to initiate legal challenges to the ETS. The Biden administration feels confident that they have developed a thorough ETS that will help to increase vaccinations rates and will withstand any legal challenges that may be forthcoming.

Writers note: On Saturday, November 6, 2021 the United States Court of Appeals for the fifth circuit granted a stay to block the ETS. The Fifth Circuit Court of Appeals wrote that the pending lawsuit raised “cause to believe that there are grave statutory and constitutional issues” surrounding the ETS. The Court has stayed the ETS until further notice by the Court and ordered the parties to submit further briefing about the validity of the ETS. The stay order issued on November 6 is not a final ruling on the validity of the ETS but will halt its implementation at least temporarily.

Disclaimer

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Author

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David L. Barry

ARM, CAE, SVP & National Director of Casualty Risk Control, WTW

email Email phone +1 913 634 9048

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