The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) to protect the health of the general public and to reduce the risk of COVID-19 spreading in the workplace. Another purpose of the OSHA ETS is to protect the health of the unvaccinated populations in the workplace. Many people are unable to receive the vaccine for health reasons, and so remain vulnerable to COVID-19. This ETS affects larger organizations, with one hundred or more employees. Under this ETS, affected employers “must develop, implement and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to elect to either get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.”
What Does the ETS Require Employers to Do?
OSHA goes on to state that covered employers and organizations must:
Determine the vaccination status of each employee.
Obtain acceptable proof of vaccination from vaccinated employees.
Maintain records of each employee’s vaccination status.
Maintain a roster of each employee’s vaccination status.
Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose.
Give reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.
Who Needs to Be Compliant?
The mandate applies to any business meeting the employee requirements that are under OSHA jurisdiction. This includes State and local governments.
Any business with 100+ employees
This includes any healthcare industries that meet the employee requirements. The OSHA ETS relating to the healthcare industry has expired, but the risks that healthcare workers are facing amidst the continuing pandemic have not.
State and local governments with 100+ employees
According to OSHA, “In states with OSHA-approved State Plans, state, and local government employers, as well as private employers, with 100 or more employees will be covered by state occupational safety and health requirements.” This essentially means that most state and local governments will be covered under the OSHA ETS.
Dates of Compliance
While the dates of compliance for employers were December 6th, 2021, for most requirements, and with vaccination and testing requirements due by January 4th, 2022, things changed due to all of the legal proceedings. According to the National Law Review, “To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion concerning the compliance dates of the ETS.” To give employers time to comply, OSHA will not be giving out any citations for noncompliance until after January 10, 2022. While this date has passed, no citations will be given out for noncompliance with testing standards until after February 9, 2022. Although, this is with the condition that the employer is giving a good faith effort to comply. Osha plans on working closely with the community being regulated to offer compliance support if the ETS goes into effect.
However, the January 13th Supreme Court ruling to stay the ETS pending disposition of the matter at the Sixth Circuit Court of Appeals brought ETS enforcement to a halt. One part of OSHA’s ETS that the Court took issue with was its broad scope. “OSHA’s indiscriminate approach fails to account for this crucial distinction-between occupational risk and risk more generally-and accordingly the mandate takes on the character of a general public health measure, rather than an ‘occupational safety or health standard.”.
However, there is still a future for an OSHA ETS. From the Court’s comments, it can be implied that an ETS more specifically targeting industries where COVID-19 is a true occupational hazard would be accepted. Whatever any future rulings decide, many employers will be adopting OSHA’s ETS or some form of it to ensure the safety and health of their workplaces.
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