OSHA’s New COVID Vaccination and Testing Emergency Temporary Standard - Conway Center for Family Business

UPDATE: 12-19-20

OSHA’s Emergency Temporary Standard (ETS) for COVID-19 vaccination and testing is officially in the Federal Register. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before Jan. 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

A federal appeals court has lifted the temporary stay that blocked the Occupational Safety and Health Administration’s Covid-19 vaccine rule that will require large employers to mandate the vaccine or require weekly testing of unvaccinated workers. Shortly afterward, OSHA shed new light on its enforcement plans.

The U.S. Court of Appeals for the Sixth Circuit on Friday in a 2-1 decision lifted the stay that was initially put in place by the Fifth Circuit on Nov. 6 – just days after the rule was announced in the form of an emergency temporary standard.

A few things to note:

  • All private employers with 100 or more total (temporary and permanent corporate-wide) employees, with a few exceptions, must develop, implement and enforce written policies on COVID-19 vaccination for their workforce. Or an employer must establish, implement, and enforce a written policy to allow proof of regular COVID-19 testing and mandatory face coverings instead of vaccination.
  • This DOES NOT apply to:
    • Settings covered under the healthcare ETS that came out earlier this summer
    • Federal workplaces
    • Public employers in states without State Plans (such as workplaces covered by PERRP in Ohio, unless PERRP adopts this regulation)
    • Even if an employer is covered, the following groups of employees are exempt:
    • Employees who do not report to a workplace where other individuals are present
    • Employees while working from home
    • Employees who work exclusively outdoors

Now is the time for employers to prepare.

The elements of a written plan include:

  • Employer’s requirements for COVID-19 vaccination; including exclusions from the written policy (e.g., medical contraindications, medical necessity requiring a delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs).
  • Information on determining an employee’s vaccination status and how this information will be collected.
  • Paid time and sick leave for vaccination purposes.
  • Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace. (Employers are not required to provide paid time for removal due to positive test or diagnosis of COVID-19.)
  • How information will be provided to employees in language and literacy level the employee understands.
  • Disciplinary action for employees who do not abide by the policy.
  • The policy’s effective date, who the policy applies to, deadlines (e.g., for submitting vaccination information, for getting vaccinated), and procedures for compliance and enforcement).

If weekly testing is permitted in lieu of vaccination, the plan must include testing requirements and requirements for face coverings when working indoors or when occupying a vehicle with another person for work purposes.

Thank you to our friends at Safex for providing this timely information.

Leave a Comment

Your email address will not be published.

Scroll to Top