Requires businesses with over 100 employees to enforce a mandatory vaccine program or test employees weekly and enforce face coverings at work. Requires paid time off to get vaccination and paid leave to recover from side effects.
The U.S. Department of Labor’s Occupational Safety and Health Administration announced a new emergency temporary standard (ETS) implementing President Biden’s directive to require private employers with more than 100 employees to mandate coronavirus vaccinations for their employees or start a weekly testing program and mask mandate.
The ETS is effective immediately upon its publication in the Federal Register. Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication. The ETS was scheduled to be published November 5, 2021, placing the testing requirement deadline on January 4, 2022.
Lawsuits to block the implementation of the new rule have already been announced.
Arizona Attorney General Mark Brnovich announced he will file a lawsuit Friday morning once Occupational Safety and Health Administration (OSHA) rules are officially published.
“When faceless government bureaucrats dictate what you must inject into your body, that’s the furthest thing in the world from a safe workplace,” said Attorney General Mark Brnovich. “The government doesn’t get to be your nanny, and it’s certainly not your doctor.”
According to OSHA the ETS will protect more than 84 million workers from the spread of the coronavirus on the job.
According to OSHA, under this standard, covered employers must 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.
The agency warns that since 2020, the coronavirus has led to the deaths of 750,000 people in the U.S., and the infection of millions more, making it the deadliest pandemic in the nation’s history. It says many of the people killed and infected by this virus were workers whose primary exposures occurred at their jobs. OSHA estimates that this rule will save thousands of lives and prevent more than 250,000 hospitalizations due to workplace exposure to COVID-19 over the course of the ETS.
“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” said U.S. Labor Secretary Marty Walsh. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19. Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.”
The emergency temporary standard covers employers with 100 or more employees company-wide and provides options for compliance. OSHA explained that individual-owned franchise businesses with fewer than 100 employees company-wide are not covered by the standard even if the franchisor has more than 100 employees.
The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
The ETS also requires employers to do the following:
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
- Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
- Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
- Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
The emergency temporary standard does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings.
“While vaccination remains the most effective and efficient defense against COVID-19, this emergency temporary standard will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus,” said Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick. “As part of OSHA’s mission to protect the safety and health of workers, this rule will provide a roadmap to help businesses keep their workers safe.”
OSHA produced a webinar, embedded below with compliance assistance to help businesses implement the standard.
The ETS also serves as a proposal for normal rulemaking for a final standard. OSHA is seeking comment on all aspects of this ETS and whether the agency should adopt it as a final standard.
OSHA says will continue to monitor the status of COVID-19 infections and deaths, as the number of vaccinated people in workplaces and the general public increases and the pandemic evolves. OSHA will update the ETS should the agency find a grave danger no longer exists for the covered workforce (or some portion thereof), or new information indicates a change in measures is needed.
The Biden Administration had previously announced a vaccination mandate initiative for Federal Government employees and contractors.
Updated: 11/4/2021 – 3:30 p.m. (EDT) – Added information on Arizona AG lawsuit.