US OSHA issues COVID vaccine and testing ETS

Federal OSHA published today in the Federal Register its "Emergency Temporary Standard (ETS) to protect more than 84 million workers from the spread of the coronavirus." We provide here the OSHA FAQs documents highlighting the critical provisions and requirements of the ETS.

The ETS compels covered employers to develop and enforce a mandatory COVID vaccination policy unless they adopt a policy requiring employees to choose either vaccination or weekly COVID testing and masking at work.

The ETS covers employers with 100 or more employees – firm- or company-wide – and provides options for compliance. It also requires employers to provide paid time to workers to get vaccinated and paid leave to recover from side effects.

Moreover, the ETS requires employers to:

• Determine the vaccination status of each employee, and obtain acceptable proof and maintain records of that status.
• Require employees to provide prompt notice when they test positive for or are diagnosed with COVID. Such employees must be removed from the workplace, regardless of vaccination status, and cannot return until they meet specified criteria.
• Ensure each worker who is not fully vaccinated is tested for COVID at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or more).
• Ensure that (in most circumstances) an employee who is not 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 or face coverings, although employers may be required to pay for testing to comply with other laws, regulations or collective bargaining agreements.

OSHA is offering compliance assistance to implement the standard.

Employers must comply with most ETS requirements within 30 days of today's publication, and within 60 days for testing requirements.

We will report separately on the numerous constitutional and other legal challenges being filed by the multiple states' Attorneys General and business organizations to invalidate the ETS.