First published by Safety+Health an NSC publication
OSHA will officially publish its emergency temporary standard on COVID-19 vaccination and testing, which will apply to employers with more than 100 employees, in the Nov. 5 Federal Register.
Covered employers will have until Dec. 5 to develop, implement and enforce a mandatory COVID-19 vaccination policy – or develop a policy that gives employees the choice to get vaccinated or undergo weekly COVID-19 testing.
Covered employees will have a deadline of Jan. 4 to be fully vaccinated or begin undergoing weekly COVID-19 testing. Unvaccinated workers also will be required to wear a face covering while indoors or in a vehicle “with another person for work purposes.”
The ETS directs employers to provide paid time off to receive a vaccine – up to four hours for each dose – and paid leave for any side effects from vaccinations. The 30 days will allow employers time to determine the vaccination status of employees and get any documentation in order, among other considerations. It also will give workers time to get their only dose or the first of two doses of a vaccine.
According to an OSHA fact sheet, the ETS won’t apply to employees who work from home, work “exclusively outdoors” or don’t report to a workplace “where other individuals are present.”
During a Nov. 4 press conference, OSHA Deputy Assistant Secretary Jim Frederick said many employers already are complying with the requirements of the ETS. He also noted that the agency chose the 100-employee threshold because employers with that many workers typically have the “administrative capacity” to implement the requirements of the ETS “promptly.”
He added: “We know that the vast majority of workplaces will comply with this rule.”
The ETS includes a 30-day comment period. One subject OSHA is seeking to learn more about is “the ability of employers with fewer than 100 employees to implement COVID-19 vaccination and/or testing programs.” This means the employee threshold could be adjusted in the future.
Frederick noted that the agency will provide “robust” compliance assistance along with outreach to companies.
In addition to the fact sheet on the ETS, OSHA has an ETS summary, a set of frequently asked questions and answers, and sample policies for employers.
In response to the ETS news, Sen. Mike Braun (R-IN) announced that he’s leading an effort – with the support of at least 40 other lawmakers – to overturn the regulation under the Congressional Review Act. However, the CRA requires approval from both the House and Senate as well as the president, so the attempt is largely symbolic.
“This unacceptable federal directive impacts tens of millions of Americans and warrants review by Congress,” Braun said in a press release.
OSHA estimates that two-thirds of private-sector workers, or around 84 million, will be covered under the ETS, which will preempt any state laws, according to Department of Labor Solicitor Seema Nanda. State Plans will have to adopt standards that are “at least as effective as” federal OSHA’s.
The ETS will likely face challenges in the courts. Georgia Gov. Brian Kemp (R) and Georgia Attorney General Chris Carr announced Oct. 29 that they would file a lawsuit against a similar vaccination requirement, from the Biden administration, for federal contractors. South Carolina Gov. Henry McMaster (R), as well as Alabama, Idaho, Kansas and West Virginia, have joined the suit.
Also on Oct. 29, the Supreme Court refused to block a vaccine mandate for health care workers in Maine. That same day, the 2nd U.S. Circuit Court of Appeals reversed a lower court’s decision to block a vaccine mandate for health care workers in New York.
Similarly, in August, Supreme Court Justice Amy Coney Barrett turned down an appeal from Indiana University students to block their school’s vaccination requirement.
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