White House Announces OSHA ETS for Private Sector Employers

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued its much anticipated second emergency temporary standard (ETS) with respect to COVID-19.

While OSHA’s first ETS focused primarily on healthcare workers, today’s ETS applies to private employers with 100 or more employees corporate-wide, with limited exceptions. It does not apply to employers that are already subject to the Healthcare ETS or to President Biden’s Executive Order 14042, which governs federal contractors, as OSHA takes the position that those already-established requirements are sufficient to protect against the dangers presented by COVID-19. The ETS also does not apply to employees who do not report to a workplace where other individuals are present, employees who work from home or employees who work exclusively outdoors.

Today’s ETS establishes requirements for the following:

• Vaccination
• Verification of vaccination
• The use of face coverings and weekly testing for those who remain not fully vaccinated

Specifically, it requires covered employers to develop, implement and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement and enforce a policy allowing employees who are not fully vaccinated to undergo weekly COVID-19 testing and wear a face covering at the workplace. Employees may be exempt from the vaccination or other requirements for medical reasons or if they are entitled to a reasonable accommodation due to a disability or a sincerely held religious belief. The ETS also requires covered employers to implement the following:

• Determine the vaccination status of all employees
• Obtain acceptable proof of vaccination
• Maintain records of vaccination status
• Maintain a roster of each employee’s vaccination status

Covered employers must provide reasonable time, up to four hours of paid time, for employees to receive each vaccination dose, as well as reasonable time and paid sick leave for employees to recover from any side effects experienced from each dose. Under the ETS, covered employers are not required to pay for any costs associated with the required weekly testing for unvaccinated employees. The ETS also requires employees who test positive for COVID-19 to be removed from the workplace, and requires covered employers to report to OSHA any incidences of COVID-19 hospitalizations or fatalities. OSHA has issued a fact sheet and FAQ resources for employers seeking further information on the ETS.

The ETS is scheduled to be published in the Federal Register on November 5, 2021. All of its requirements, other than the required testing for unvaccinated employees, become effective 30 days later, or on December 5, 2021. The required testing provision becomes effective on January 4, 2022. Due to the emergency nature of the ETS, it may only remain in effect for up to six months. However, the ETS doubles as a proposal under Section 6(b) of the Occupational Safety and Health Act, meaning the ETS could be adopted as a final standard following a comment period.

The ETS specifically notes that it is intended to preempt any state or local requirements that ban or limit an employer from requiring vaccination, the use of face coverings or COVID-19 testing. So far, political leaders in at least 24 states have announced that they intend to challenge at least certain provisions of the ETS, so employers should keep a watchful eye on developments over the next two months.

The ETS contains numerous detailed provisions, not all of which are discussed herein. Also of note, the Centers for Medicare & Medicaid Services (CMS) at the Department of Health and Human Services announced today the details of its requirement that health care workers at facilities participating in Medicare and Medicaid be fully vaccinated. The CMS requirements, unlike OHSA’s ETS, does not allow for an alternative policy of weekly testing and face coverings in lieu of vaccination.

The employment attorneys at Phelps continue to study today’s ETS and are monitoring the ever-changing situation. Please contact Trey Clark or any  member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.