After the announcement of the President’s COVID-19 Action Plan, entitled Path out of the Pandemic, the federal Department of Labor’s Occupational Safety and Health Administration (OSHA) published its COVID-19 Vaccination and Testing, Emergency Temporary Standard (ETS). The OSHA’s COVID-19 ETS requires all covered employers with 100 or more employees to either mandate their workforce receive the vaccination against COVID-19 or test them weekly to ensure they are not infected.
However, lawsuits challenging the legal authority of the OSHA’s COVID-19 ETS were filed not long after it was issued. As a result, the ETS is currently blocked by court order and its fate will be decided by the Sixth Circuit Court of Appeals. In the meantime, even with the legal challenges, covered employers should prepare required policies and practices. A decision could be issued at any time, making OSHA’s COVID-19 ETS immediately enforceable, thus leaving employers very little time to comply.
OSHA’s COVID-19 Vaccination ETS Basics
Generally, the OSHA’s COVID-19 ETS requires private employers with more than 100 employees to either mandate covered employees to be fully vaccinated against COVID-19 or require covered employees that are not fully vaccinated to test for COVID-19 at least weekly and wear a face mask.
As part of OSHA’s ETS, employers are also obliged to:
- establish, implement, and enforce a written policy on vaccines, testing, and face masks,
- provide certain information to employees on vaccines and the requirements of the ETS,
- provide paid time off to employees to obtain the vaccine and reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination series dose to each employee for each dose,
- obtain and maintain records and roster of employee vaccination status, and
- comply with certain notice requirements when there is a positive COVID-19 case and report to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.
The OSHA’s COVID-19 ETS includes two compliance dates, December 6, 2021, which includes most of the obligations mandated under the standard, and January 4, 2022, which primarily addresses testing. However, these deadlines are in flux as a result of the Fifth Circuit suspension and it is highly unlikely that a decision will be issued before December 6, as the effective date for the majority of ETS’ provisions.Use this comprehensive guide to stay on top of the necessary regulations and healthcare industry-leading best practices.
Determining Employer Coverage
To begin with, employers should determine if they are covered by the OSHA’s COVID-19 ETS if the courts lift the stay or uphold the standard. The ETS applies to all employers with a total of 100 or more workers, company-wide. Temporary and seasonal workers are counted as employees for purposes of coverage, but independent contractors are not.
It does not apply to federal contractor workplaces, workplaces where employees provide healthcare services or healthcare support services, and employees of covered employers:
- Who do not report to a workplace where other individuals such as coworkers or customers are present,
- While working from home, or
- Who work exclusively outdoors.
In addition to this, employers might be subject to state versions of OSHA. OSHA’s jurisdiction extends directly to 29 states, but other states have their own federally approved workplace safety agencies. They have until February 2022 to adopt their own version of the vaccine mandate that is at least equal to the ETS requirements. States that fail to adopt either the OSHA’s COVID-19 ETS or a modified version run the risk of losing federal approval to administer the OSHA plan in the state, with the federal OSHA stepping in to enforce the ETS.Healthcare investigations can be costly for businesses and lead to different types of penalties, but understanding healthcare enforcement actions helps you mitigate the risk and stay compliant.
Potential Consequences of Non-Compliance with the ETS
Given the federal court stay, businesses covered by the ETS are not legally obliged to adopt an ETS-compliant policy by December 6. Nevertheless, employers are strongly advised to begin preparing for the enforcement of workplace vaccine rules and thus avoid serious consequences of non-compliance. Covered employers who ignore the OSHA’s COVID-19 ETS while it is in effect could face OSHA penalties of up to $13,653 per violation, and additional penalties as determined by OSHA or state OSHA for willful failures to comply. This means a covered employer could face a penalty of that amount for each facility, area within a facility, or each employee within a facility. In addition to this, covered employers may face potential exposure for an individual whistleblower, retaliation, negligence, and other claims potentially asserted by employees. Therefore, rather than facing inspections, fines, or penalties, a prudent employer would be prepared with a policy in place in case the court upholds the ETS.
Taking Necessary Steps to Prepare for the OSHA’s COVID-19 ETS
The OSHA’s COVID-19 ETS is complex and has multiple requirements for employers. The best approach would be to create a compliant program with written policies and practical procedures to implement all phases of the program. This should cover collecting proof of vaccination status, receiving, reviewing and deciding on accommodation requests, and monitoring compliance with weekly testing requirements and mask-wearing for those not fully vaccinated.
This ETS does not cover healthcare settings in which an employee provides healthcare services while they are covered by the requirements of the June 2021 OSHA COVID-19 Healthcare ETS. However, it may apply to healthcare providers with employees who are not covered by the Healthcare ETS. If healthcare employers have more than 100 employees, the new ETS may apply to those employees. Consequently, healthcare providers may be required to comply with both the June ETS and the new ETS. Adapting to changing COVID-19 environment requires employers, including those in the healthcare industry, to make significant efforts to comply. Given the myriad of sources that need to be monitored consistently, healthcare providers can rely on technology to make sure this is done properly and efficiently. This simplifies the process of meeting more and more demanding directives and guidelines while ensuring healthcare compliance.