OSHA Provides Details on Upcoming COVID-19 Emergency Temporary Standard
On September 9, President Biden released his COVID-19 Action Plan, which includes a six-pronged plan to combat COVID-19 through increased vaccinations, testing and other strategies. The plan will require employers with 100 or more employees to test nonvaccinated employees on a weekly basis. The White House also announced it will require vaccinations for those working for the federal government, federal contractors and establishments providing healthcare services that accept Medicare and Medicaid.
The Biden administration is using different agencies to implement and enforce the different requirements. The Occupational Safety and Health Administration (OSHA) will require employers with 100 or more employees to test nonvaccinated employees on a weekly basis through an Emergency Temporary Standard (ETS). While OSHA has yet to release many specifics about the timing and the content of the ETS, the agency did release some information late last week.
General Timeline of the ETS
In a call last week with stakeholders, OSHA said it plans to publish the ETS in the Federal Register in the next few weeks, at which time the ETS will become effective immediately in states where OSHA has direct jurisdiction. The 22 states with OSHA-approved State Occupational Safety and Health Plans must adopt the ETS or a standard at least as protective within 30 days of OSHA publishing the ETS in the Federal Register.
Because the ETS will be effective immediately once published in the Federal Register, stakeholders will not have the opportunity to provide input on the standard prior to its implementation. Instead, stakeholders may comment on the ETS after it is published in the Federal Register. OSHA will use those comments to shape the subsequent final rule that will replace the ETS, which OSHA plans to issue six months after the initial release of the ETS.
Content and Policies of the ETS
OSHA also said on the call that it will be working with other federal agencies to ensure the language included in the ETS is consistent with the vaccination mandates imposed on federal contractors through President Biden’s Executive Order. Additionally, OSHA clarified that it will consider the employers’ workforce and not just a single worksite in evaluating employers that meet the 100-employee threshold for coverage. The ETS testing and vaccination requirements are also not likely to extend to remote employees who are physically isolated from coworkers or customers.
Consistent with the COVID-19 Action Plan, the ETS will also require employers to provide employees with paid time off (PTO) or allow employees to use existing PTO to obtain vaccinations and recover from post-vaccination side effects.
Finally, OSHA reviewed several issues where it does not currently have an answer, but it intends to address in the ETS. These questions include who pays for the required employee testing and what level of vaccination is required under the ETS (i.e. one shot, two shots or even a booster shot). In addition to these questions, information on the procedures of how employers will verify vaccinations, tests and procedures for handling employees who refuse to get vaccinated or undergo routine testing will likely be addressed in the ETS.
CUPA-HR will continue to monitor for any information on the upcoming ETS and keep members apprised of any additional policies or requirements likely to be included as OSHA continues to work towards implementation.