Key to remember: Employers have until 12/5/21 to comply with all but the testing provisions; until 1/4/22 for the testing provisions
Applies to: Private employers with 100 or more employees while the rule is in effect.
Impact to customers: Covered employers are to have a policy requiring employees get vaccinated or test weekly and wear face coverings at work. They must also capture vaccination proof and keep a roster of employee vaccination status.
On November 4, OSHA released its long-awaited Emergency Temporary Standard (ETS) on protecting employees from the COVID-19 virus. The ETS requires employers with 100 or more employees (total, not per location) to develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. Note: Remote employees are included in the count toward 100, but are not required to be included in the vaccination/testing policy.
Employers need to pay for time off to receive a vaccine and deal with side effects. Employers need not, however, pay for time off for testing; nor do they need to pay for face coverings.
All the provisions except for those involving testing are effective December 5, 2021. The testing requirements are effective January 4, 2022.
As an ETS, the requirements will be in effect for 6-months, at which time OSHA must decide whether to proceed with a permanent rulemaking process. Note: The ETS serves as a proposed rule for such a final standard. States with approved OSHA plans, such as California and Washington, must adopt similar requirements.
Many parties have signaled plans to challenge the ETS either through the courts or through legislation. Employers should pay close attention to the status.
OSHA did try to combat some of these preemptively by including language in the ETS that says states or municipalities cannot override the ETS by enacting bans or limits on employers’ authority to require vaccination, face covering, or testing.
The ETS covers:
Note: The ETS does not cover:
In addition to creating the vaccination/testing policy, employers must also:
What about accommodations?
Employees may request medical or religious accommodations from the vaccination or testing requirements. Employers are urged to follow applicable guidance from the EEOC and legal counsel.
This is one of the most broad-reaching OSHA rules ever published. It is also one of the more controversial. However, unless the courts or Congress step in, employers will need to comply with the applicable requirements. Given the nature of the rule, employers should start sooner rather than later crafting their policies and plans for implementation.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.