The U.S. Department of Labor’s Occupational Safety and Health Administration announced a new emergency temporary standard (ETS) today, designed to protect 84 million private sector workers from the spread of the coronavirus on the job. The agency warns the nation’s unvaccinated workers face grave danger from workplace exposure to coronavirus, and immediate action is necessary to protect them.
Recent developments
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.
Since 2020, the coronavirus has led to the deaths of 750,000 people in the United States, and the infection of millions more, making it the deadliest pandemic in the nation’s history. 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.”
Impact on employers
The ETS covers employers with 100 or more employees and provides options for compliance. It also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects. Read the original announcement of the vaccine mandate on our website (when the executive order was first released), which also extends to employees of outside contractors that do business with the federal government.
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 ETS 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.”
Helpful resources
OSHA is offering robust compliance assistance to help businesses implement the standard, including a webinar, frequently asked questions and other compliance materials.
The ETS will cover two-thirds of the nation’s private-sector workforce. In the 26 states and two territories with OSHA State Plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff.
Leading companies, including major airlines, manufacturers and retailers, have taken similar actions in recent months, adopting vaccine requirements or regular testing as necessary measures to protect their workers and customers.
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 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 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.
Industry response
According to the Associated General Contractors of America (AGC), the new federal COVID vaccine rules will likely prompt construction workers to shift to smaller firms, adding to the sector’s already serious labor challenges.
“This association has been an ardent advocate for the coronavirus vaccine. We were among the first to organize a nationwide coronavirus vaccine awareness week, have worked with the CDC to provide resources and public service ads specific to the construction industry, and continue to take every possible step to urge construction professionals at all levels to get vaccinated,” said CEO Stephen E. Sandherr in a statement released today in reaction to OSHA’s new coronavirus vaccine rule. “Instead of providing additional resources and support to encourage workers to do the right thing, the Biden administration’s new vaccine mandates will make the challenge of vaccinating more construction professionals harder, based on our initial analysis of the measure.”
He asserts the rule creates more confusion than clarity. “The measure claims to require workers to incur the costs of testing, yet it also says many employers will likely be required to pay those workers for the time spent getting tested. The rule also claims to exempt people who work outside -- something many in construction do -- but then defines outside in a way that excludes just about every occupation traditionally performed outdoors,” he said. “By opting to have one standard apply to federal contractors, a different standard apply to firms that employ 100 or more people, and no standard for firms with 99 or fewer workers, the administration is doing more to encourage vaccine-reluctant workers to relocate to smaller firms than to get vaccinated. This is something many workers will easily be able to do in a labor market where nearly 90 percent of construction firms are having a hard time finding workers to hire.”
Attorney's take on ETS implications
Keith Wilkes, a labor and employment partner/shareholder at the national law firm Hall Estill, shared a few thoughts with the media regarding calls he's been fielding from employers ever since today's announcement broke.
"The ETS is big news, but we have been expecting it to drop since mid-October when the first draft went to The White House," Wilkes says. "What we did not know, however, is the answer to questions posed by employees and employers since the ETS was announced by President Biden in early September, including whether the ETS would be essentially the same mandate being put in place for federal employees and federal contractors. We know today that there are some important difference, beyond the option provided in the ETS for employers to conduct mandatory weekly testing to non-vaccinated employees."
Following are some key observations/comments released from Wilkes regarding today's announcement:
- "The ETS does not apply to employees of covered employees who do not report to a workplace where other co-workers or customers are present, or who work exclusively from home."
- "If an unvaccinated office employee has been teleworking for two weeks but must report to the office, where other employees will be present (e.g., coworkers, security officers, mailroom workers), on a specific Monday to copy and fax documents, or attend a meeting, that employee must receive a COVID-19 test within the seven days prior to the Monday and provide documentation of that test result to the employer upon return to the workplace."
- "Employers covered under the new OSHA ETS have their work cut out for them to get in compliance with the new standards, while employees who are given the option for weekly mandatory testing will have to pay for that testing out of their own wallets."
- "The OSHA ETS will be officially published on November 5, triggering the countdown toward two important deadlines. 60 days from November 5, not counting that day, is January 4, 2022. This is the date mandatory weekly testing compliance begins for employers that choose to allow employees this option. Until then, however, covered employers have a long laundry list of legal requirements to accomplish and prepare for in the next 4 weeks, to include the implementing a mandatory mask policy for employees who are not fully vaccinated by December 5, 2021, and begin requiring unvaccinated employees to wear face masks in the workplace."
