We received notice from the Coalition for Workplace Safety late yesterday that the United States Court of Appeals for the Sixth Circuit has dissolved the stay on the Covid ETS (ETS). This means the ETS is now in effect, and that OSHA got an early Christmas present. While the ETS will almost certainly now head to the Supreme Court, the difference is that the ETS will be in effect while heard at the Supreme court.
OSHA has stated they will use enforcement discretion and will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the testing requirements before February 9 as long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.
Please remember, the ETS covers employers with 100 employees or more. If you don’t have 100 employees, you should not be covered by this rule, as we read it today. If you have more than 100 employees on a company-wide basis at any time the ETS is in effect, then you may be covered. For example, if you have workers that are employees of a staffing service, those workers do not count toward your 100 workers, but the staffing service will have to comply if they have over 100 total workers in their group. If you have over 100 workers at any time, you should contact TCGA for assistance in determining whether you are covered by the standard. This standard does explicitly preempt any state or local law.
Even if you are not covered, it may be worth checking out the explanation for how this rule will work below. The ETS was originally scheduled to go into effect on December 5, so parts of the standard to into effect now. There are two items that are scheduled to go into effect on January 4. January 4 is the deadline for workers to either be vaccinated or start following the testing requirements. All the other requirements kick in on December 5. For the purpose of this standard, vaccinated means that two weeks have passed since you finished the vaccination process.
In this standard, OSHA is saying they want all workers to be vaccinated, but if the workers choose not to be vaccinated, OSHA will allow a second option that an employer can allow. To this end, covered employers are required to develop a Covid-19 program that encourages workers to get vaccinated. As a part of this program, employers need to spell out the company policy on supporting vaccinations. One of the key elements of this plan is to provide information to each employee related to Covid-19 vaccine efficacy, safety, and benefits. OSHA suggests using this document to meet this requirement. OSHA has two sample policies available on their Covid-19 ETS Web Site. One is for employers that will mandate that all employees be vaccinated, and the second is for employers that will not mandate vaccines.
For workers that choose to get vaccinated, covered employers must spell out that workers can get vaccinated during work hours and be paid for the time required to get the shot (up to four hours per shot). Employers will also need to give the employees a reasonable amount of time to recover from the shot if needed. Employers can use existing sick time for recovery, but if no sick time is available to a particular employee, then the employer will need to offer a reasonable amount of paid time off to recover from the vaccine. Employers are not required to pay for the vaccine, since free vaccines are readily available.
Covered employers will need to get proof of vaccination from employees, and maintain a roster of total employees, showing which ones are and are not vaccinated. The types of allowable proof of vaccination are spelled out in the rule and are summarized in OSHA’s frequently asked questions.
For workers that choose not to become vaccinated, employers are required to implement certain rules for these employees. These employees must wear proper face coverings when indoors or in company vehicles with another person. There are a few exceptions to this rule which are spelled out in OSHA’s summary of the rule. These employees must be tested weekly and must turn in the tests to the employer every seven days. The employer is required to keep records of these tests. The employee who chooses not to be vaccinated is responsible for getting tested, and for submitting the results to the employer. If the employee does not turn in the test results weekly, then they cannot be in the workplace.
Employers are required to keep the records of vaccinations and of negative Covid tests according to the OSHA recordkeeping rules, except that the records will only have to be retained as long as this standard or another Covid standard is in effect. One of the things employers were originally worried about was having to retain these records for 30 years, as is done with some other medical records.
There are specific regulations about what to do if an employee tests positive for Covid, but these regulations are basically the same as the CDC guidance that we have been following since all this began. The rule does require any employee to immediately notify an employer of a positive Covid test. The new standard does specify that OSHA does not require workers to be paid for time off due to a Covid illness, but there are other rules that might require paid time off.
The return-to-work protocol is spelled out better in this rule, but also basically follows the CDC guidance. The new standard does spell out that workers should not be tested for 90 days following an infection, due to a high likelihood of false positives. Return to work policies should not be based on getting a negative Covid test.
While not a part of the OSHA regulations, there are EEOC regulations that require employers to allow exceptions to these rules for workers that have a medical or sincerely held religious belief that require an accommodation from the vaccine and/or the masking requirements. This is an entirely different set of rules, but it is something that must be considered in conjunction with this ETS.
The last part of this rule has to do with OSHA reporting. The OSHA reporting rule remains the same, except for two items. First of all, the current reporting rule requires reporting of any work-related fatality within 8 hours of learning about it if it occurs with 30 days of the work-related incident. Secondly, injuries must be reported within 24 hours if the hospitalization occurs within 24 hours of the work-related incident. In this rule, the 30 day and 24-hour portions of the rule are eliminated, meaning that work related deaths or injuries caused by Covid must be reported within 8 or 24 hours of the employer finding out about it, regardless of how long it has been since the exposure occurred at work.
There is more to the standard, but these are the main points. It is important to understand that this standard was issued as an Emergency Temporary Standard, and that no public input was allowed before the standard was issued. This standard was written by OSHA staff, then issued as a final emergency temporary standard before anyone from the public was allowed to see it.
We will continue monitoring this rule and will keep you all informed as the rule moves forward.