Today, the federal Occupational Safety and Health Administration (OSHA) issued the COVID-19 Emergency Temporary Standard (ETS). The ETS will be effective the day it is published in the Federal Register, which could be as soon as November 5th. Here are the highlights with additional explanation below:
- The ETS covers private businesses with 100 or more employees across the entire business
- Mandatory vaccination OR at least weekly testing option – excludes teleworkers and work exclusively outdoors
- Employers must establish the vaccination status of each employee
- Employers must pay for employees to take time off to get vaccinated and recover from vaccine-related sickness
- Employers are not required to pay for testing. Employees pay for testing and must provide documentation to employer
- December 5, 2021: All ETS policies developed and implemented, including PTO for vaccination and face coverings for unvaccinated
- January 4, 2022: All employees must have received their vaccination, even if they still have not completed the 2-week waiting period. Testing for unvaccinated employees begins.
Here is a more detailed (but preliminary) summary:
Employer Implementation: The ETS is written as a mandatory vaccination policy with an exemption for employers that implement a written policy that allows employees to choose regular testing over vaccination (and wear a face covering). In practice, employers have a choice. An employer can choose to develop, implement, and enforce a mandatory vaccination policy, with requirements specified in the ETS. Alternatively, employers can instead establish, implement, and enforce a policy allowing employees to elect to: (1) become fully vaccinated (except the two-week waiting period) by January 4, 2022, or (2) after January 4, 2022, to undergo at least weekly verified COVID-19 testing and use of face coverings in lieu of vaccination. This gives employers the option to choose their policy, but the ETS does not mandate vaccination. All policies, however, must be developed and implemented by December 5, 2021.
Compliance Dates: Employees of covered employers must be fully vaccinated by January 4, 2022. After that date, all unvaccinated employees must begin producing a verified negative test to their employer at least weekly. Employees who have completed their vaccination course, but have not passed the waiting period, do not need to be tested. All other ETS requirements, such as requirements to provide Paid Time Off (PTO) to get vaccination and the use of face coverings for unvaccinated workers must be in place and implemented by December 5, 2021. Note that the federal contractor mandatory vaccination deadline has been extended to January 4, 2022, to align with the ETS.
“Covered Employers”: The ETS applies to all private employers with 100 or more employees across the entire enterprise. To reach the 100-employee threshold, employers must aggregate all employees across all offices, plants, warehouses and other workplaces owned or controlled by the company. Dairy companies that must comply with the COVID-19 requirements for federal contractors are not covered employers.
Which Employees: Not all employees are required to comply with the ETS requirements, even if they are counted as part of the 100-employee threshold. The ETS requirements do not apply to (1) employees who do not work at a workplace where other individuals are present; (2) employees working from home; and (3) employees who work exclusively outdoors.
Accommodations: Employees can elect to be tested instead of vaccinated for any reason. Under federal law, employees with a disability or sincerely held religious belief or practice can choose the testing option without seeking accommodation. If an employee seeks to avoid both vaccination and testing/face coverings for a legally protected reason, employers will need to consider other accommodation requests. Employers should be aware of updated EEOC guidance, including a revised section L that can help employers comply with requests for religious accommodations.
Employer Vaccination Compensation Requirements: Employers must provide a reasonable amount of time (up to 4 hours) of PTO to employees for each vaccination dose received during regular work hours and reasonable time and paid sick leave to recover from any vaccination side effects.
Employee Vaccination Process and Documentation: Employers must determine the vaccination status of each employee, preserve the proof of vaccination, and keep a roster of each employee’s vaccination status – all of which are medical records to be maintained in accordance with applicable OSHA rules. “Fully vaccinated” means two weeks after a full required course of vaccines approved for emergency use by FDA, listed or for emergency use by the World Health Organization, or part of a clinical trial (with limitations). Although the ETS regulatory language does not specify the brand name of the vaccine, vaccines made by Moderna (2 shots), Pfizer/Bio N. Tech (2 shots) and Johnson & Johnson (1 shot), administered as approved, will comply with the ETS. The ETS provides a list of the acceptable proof of documentation, including a sworn attestation if necessary. An employee that does not meet the vaccination requirements is considered not fully vaccinated.
Employee Testing Costs: For employees who choose testing in lieu of vaccination, the ETS does not require employers to pay for testing or provide any PTO for testing. Note, however, that employers may be required to pay for testing due to state laws or collective bargaining agreements. Pursuant to the ETS, employees are responsible for paying for the cost of testing and using available sick or other available leave to meet the testing requirements. Also note that there is nothing to prevent employers from paying for testing and leave time.
Testing Cadence and Documentation: For employees who report to work at least once every 7 days, the employee must be tested at least once every 7 days and provide the documentation of the test to the employer no later than the 7th day following the date on which the employee last provided a test result. For employees out of the workplace for 7 days or more (such as telework or vacation), that employee must be tested for COVID-19 within 7 days prior to returning to work and provide documentation upon return to work.
If an employee is diagnosed with COVID-19 by a licensed health professional or receives a positive COVID-19 test, the employer must be promptly notified. The employee must then be immediately removed from the workplace, regardless of vaccination status, and can return only once return-to-work criteria are met. The employer will then not require that employee to undergo testing as required by the ETS for 90 days following the date of their positive test or diagnosis.
OSHA will accept viral tests that are cleared, approved, or authorized by FDA, including an emergency use authorization, to detect current infection with the SARS-CoV-2 virus. The test must be administered in accordance with authorized instructions. The test cannot be both self-administered and self-read unless it is observed by the employer or authorized telehealth proctor. The ETS provides the following examples: (1) tests with specimens that are processed by a lab, to include home or on-site collected specimens then processed either individually or as pooled specimens, (2) proctored-over-the-counter tests, point of care tests, and (3) tests where the specimen collection and processing is either done or observed by an employer.
Recordkeeping & Reporting: All vaccination and testing records received by the employer are medical records and should be safeguarded accordingly. Employers will need to make certain records available to OSHA for examination and copying and to an employee or an employee representative. Employers must also make available to employees and their representatives the aggregate number of fully vaccinated employees at the workplace, along with the total number of employees.
Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
Other COVID-19 Safety Protocols: Face coverings are not the same as facemasks, which include surgical and medical-grade masks. All covered employers must ensure that unvaccinated workers wear a face covering while in the workplace, including specific measures on the type of mask and how it is worn. This means indoor workplaces or when occupying a vehicle with another person for work purposes. Employees are not required to wear a face covering when alone in a room with floor to ceiling walls and a closed door, for the limited time the employee is eating/drinking or for safety and security identification requirements, when donning a respirator or facemask, or when use of a face covering is infeasible or creates a greater hazard. Employers are not required to pay for the cost of a face covering, unless required by other laws or collective bargaining agreements.
Employers must provide each employee certain information in the appropriate language and at the employee’s literacy level, including (1) the ETS requirements (2) the employers policies and procedures to implement the ETS, (3) the CDC document “Key Things to Know about COVID-19 Vaccines”, information about protections against retaliation and discrimination, and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
State OSHAs and Timelines: In states with OSHA-approved State Plans, covered employers must comply with state occupational safety and health requirements, which may be more stringent than the federal ETS. State OSHA Plans will have 15 days to announce the adoption of the ETS or announce an alternative, which could be more stringent and burdensome than the OSHA ETS. State OSHA Plans then have another 15 days (30 days total) to make the ETS (or the state alternative) effective. For companies under the jurisdiction of State OSHAs, the state OSHA Plan enforcement begins two weeks after the state plan’s enactment. The ETS explicitly states that it preempts any state and local requirements that ban or limit the authority of employers to require vaccination, face covering or testing.
Potential Impact of Litigation: Some state attorneys general and trade associations are expected to immediately challenge the rule and seek an emergency nationwide injunction. IDFA will keep members apprised of any legal decisions affecting the ETS.
Next steps: IDFA will place new information on its Safety Is Essential web page on the IDFA website as the ETS implementation evolves. On Wednesday, Nov. 10 from 2-3 p.m. ET, IDFA will also host a webinar for IDFA members on implementation of the ETS. Please stay tuned for additional details.
IDFA would like to thank members for their continued partnership and engagement as we advocate on your behalf about the impact of the ETS on your businesses and employees. More than two weeks ago, a group of food industry trade associations including IDFA met with representatives from the White House Office of Management (OMB) about the vaccine mandate, where we requested an exemption for critical infrastructure food companies including dairy processors. Disappointingly, the federal government chose not to exempt our industry even as our workforce and supply chains are stretched. Over the next several days, we will more thoroughly evaluate the rule and provide additional relevant information. IDFA will also compile questions regarding the ETS to facilitate prompt answers from OSHA.
IDFA strongly recommends that dairy companies review the rule in its entirety. You may find resources related to the ETS here:
For questions, please reach out to me, Danielle Quist, vice president of regulatory affairs and counsel, at firstname.lastname@example.org.