On Thursday, November 4, the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor officially filed an emergency temporary standard (ETS) in the Office of the Federal Register regarding COVID-19 vaccination and testing. The rule establishes federal requirements for vaccination and testing for employees of large employers (100 or more employees). The deadline for implementation is January 4, in line with previous requirements for healthcare workers and employees of federal contractors.
Who Is Affected?
For more resources from OSHA, including fact sheets and policy templates, please visit the ETS website.
The ETS covers private-sector employers with 100 or more employees (firm-wide) as well as state and local government employers in states with OSHA-approved State Plans. This ETS does not cover those who are covered under the guidance for Federal contractors and subcontractors or those impacted by the previously issued Healthcare ETS.
Within these State Plan states, state and local government employers with 100 or more employees will be covered by State occupational safety and health requirements, and State Plans must adopt requirements for state and local employers that are at least as effective as federal OSHA’s requirements in this ETS. State Plans may also choose to adopt more protective occupational safety and health requirements
There are also exceptions to the ETS for employees within the affected employers. Employees who do not report to a workplace where other workers are present, those who work from home or those who work exclusively outdoors will not be covered by the ETS.
What is Required?
Impacted employers must:
- Develop and implement a mandatory vaccination policy and/or weekly COVID-19 testing and face mask policy.
- Determine vaccination status of all employees by obtaining proof of vaccination and maintain a roster of these employees.
- Support vaccination by allowing employees up to four hours of paid time to receive each vaccination dose and reasonable paid sick leave to recover from any side effects of the vaccine.
- Ensure testing of unvaccinated employees occurs at least weekly (in the workplace at least one a week) within 7 days before returning to work if away for a week or longer.
- Require employees to notify you of a positive COVID-19 test.
- Remove employees with positive tests from the workplace.
- Ensure unvaccinated employees wear face masks when indoors.
- Provide information in language and literacy levels accessible to each employee.
Can the State Preempt this ETS?
No. The ETS preempts States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a Federally-approved State Plan. In particular, OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing.
OSHA’s authority to preempt such State and local requirements comes from section 18 of OSH Act, and from general principles of conflict preemption. As the Supreme Court has explained, under section 18, once OSHA promulgates federal standards addressing an occupational safety and health issue, States may no longer regulate that issue except with OSHA’s approval and the authority of a Federally-approved State Plan.
What is the Timeline?
The ETS is effective immediately upon publication in the Federal Register. For states with OSHA-approved State Plans, adoption of this ETS, or an ETS that is at least as effective as this ETS, must be completed within 30 days of the final Federal rule and State Plans must notify OSHA of the action they will take within 15 days.
Although this ETS takes effect immediately, it also serves as a proposal under Section 6(b) of the OSH Act for a final standard. OSHA seeks comment on all aspects of this ETS and how it would be adopted as a final standard. Instructions for how to submit comments can be found in the Federal Register.
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