11/5/21

OSHA Issues New COVID-19 Emergency Temporary Standard for Large Employers

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On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued a long awaited emergency temporary standard (the ETS) on COVID-19.  Broadly speaking, the ETS requires employers with 100 or more employees to ensure their workforce is fully vaccinated or require any unvaccinated employees to produce a weekly negative test and wear a mask in order to work.

Here are the details:

Who is Covered by the ETS?

The ETS applies to private employers with 100 or more employees company-wide.  Part-time employees and employees who work at home or in the field must be included in the count.  Employers are not required to count workers from staffing agencies who work at their site.  In states with OSHA-approved State Plans, state and local government employers with 100 or more employees will also be covered by the ETS through state OSHA requirements. 

The following workplaces are not covered by the ETS:  (1) workplaces covered under the September 2021 COVID-19 Executive Order for Federal Contractors and Subcontractors; (2) health care settings where any employee provides health care services or health care support services when subject to the requirements of 29 C.F.R. § 1910.502 (OSHA’s Health Care COVID-19 Emergency Temporary Standard); (3) workplaces of employers who have less than 100 employees company-wide; and (4) public employers in states without State Plans. 

Even if the ETS applies to an employer, it does not apply to employees: (1) while working from home; (2) who work exclusively outdoors; or (3) who do not report to a workplace where other persons are present.

What Does the ETS Require?

The ETS requires employers to comply with the following requirements:

Who Pays For COVID-19 Tests for Unvaccinated Employees?

The ETS provides that employers are not required to pay for any costs associated with COVID-19 testing required by the ETS.  However, the ETS also notes that employer payment for such testing may be required by other laws, regulations, or collective bargaining agreements.  This is an area of significant legal uncertainty, particularly for employers with operations in California and other states with employee-friendly wage and hour laws.

What Type of COVID-19 Tests are Accepted?

The ETS allows for the use of any COVID-19 diagnostic test cleared, approved, or authorized, including in an Emergency Use Authorization, by the FDA.  However, an employee cannot both self-administer and self-read the test unless the process is observed by the employer or by an authorized telehealth proctor.  Antibody tests do not satisfy the testing requirement of the ETS.

What about Accommodation Requests?

The ETS notes that employees may be entitled to a reasonable accommodation for disability or a sincerely held religious belief, observance, or practice.  Employers are instructed to consult EEOC regulations and guidance for additional information.

When Does the ETS Take Effect?

By December 5, 2021, employers must comply with all of the ETS provisions, except for the unvaccinated worker testing requirement.  The testing requirement goes into effect on January 4, 2022.  Numerous legal challenges to the ETS are expected before the requirements take effect.

Vorys attorneys will be providing a free webinar regarding the OSHA ETS on November 8, 2021 at 12pm (ET).  You can register here. The webinar will also address the rule issued by the Centers for Medicare & Medicaid Services (CMS) requiring workers at Medicare and Medicaid participating facilities to be vaccinated. 

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