On November 4, 2021, the U.S. Occupational Safety and Health Administration (OSHA) released its highly anticipated regulations in relation to President Biden’s directive for mandatory COVID-19 vaccinations. Released on September 9, 2021, the mandate requires all federal employees and federal contractors to be fully vaccinated.
The Emergency Temporary Standard (ETS) issued by OSHA for private-sector employers with at least 100 employees identifies the vaccination, testing and reporting requirements employers must follow for their employees. In addition to OSHA, the Centers for Medicare & Medicaid Services (CMS) also released requirements for health care workers to be fully vaccinated when working at facilities participating in Medicare and Medicaid.
Several states, following the release by OSHA, pushed back on government and private employer vaccine mandates through state legislation and lawsuits against the federal government. A federal appeals court had temporarily blocked the ETS mandate; then on November 15, 2021, the U.S. Court of Appeals for the Fifth Circuit reaffirmed its preliminary stay that blocked the mandate.
Further complicating the matter, there are currently 22 states that have OSHA approved State Plans regulating the private sector. Those states have 30 days to adopt the federal OSHA ETS plan or implement something similar that is as effective as the federal OSHA ETS. In addition to their own OSHA plans, some states have passed laws prohibiting or limiting employers from requiring vaccines, face coverings or testing. To find out if your state has its own plan, go to https://www.osha.gov/stateplans.
Recently, OSHA commented on its website on November 16, 2021, stating that while it remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation from November 12, 2021. During this litigation, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing ETS. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.”
Despite the current OSHA announcement and the court challenges, companies should still evaluate their current readiness and begin preparing for a mandate. Some companies have decided to implement a company-wide policy and practice of requiring vaccines and testing despite the hold from OSHA. It might take some employers weeks of planning to comply with the new requirements, and if deadlines are not moved, employers that wait risk being out of compliance.
Keep in mind, the stay of the ETS provision did not halt enforcement of any of the other rules, such as the CMS, federal contractors mandate, state statutes or executive orders that may be in place. Therefore, employers could start by doing the following:
Below, we provide insightful resources and information to help you understand and consider the employer requirements under the mandate.
OSHA’s ETS requires employers to establish and maintain a log to record COVID-19 cases in their workforce. The employer is responsible for recording each positive COVID-19 case, regardless of whether the instance is connected to COVID-19 exposure at work. The log must be maintained and preserved while the ETS is in effect. To obtain a copy of the recording requirements and OSHA log, visit: https://www.osha.gov/sites/default/files/publications/OSHA4130.pdf.
The employee threshold is determined by counting employees in all locations within the U.S. regardless of vaccine status and where they work. This includes part-time and seasonal employees but not independent contractors. Employers with more than 100 employees must follow the below requirements:
NOTE: Any private employers of 100 or more employees with OSHA approved state plans are covered by the state occupational safety and health requirements.
To support the rollout of the ETS, OSHA is offering assistance to help employers implement the new requirements. Those resources include:
All can be found at: https://www.osha.gov/coronavirus/ets2.
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