The Emergency Temporary Standard (ETS), newly issued by the Occupational Safety and Health Administration (OSHA), requires compliance by all companies with over 100 employees. This rule establishes new regulations associated with employers’ COVID-19 safety standards and has firm deadlines to maintain compliance.
To aid companies that may be affected by the ETS, this guide, which includes common questions and answers, will assist in navigating this new OSHA standard.
1. What actions must employers take within the next thirty (30) days (by SUNDAY, December 5, 2021)?
- Provide mandatory information to employees which includes: A statement regarding the requirements of the ETS and the Company’s policies and procedures regarding the ETS; The CDC’S “Key Things to Know About COVID-19 Vaccines”; Information regarding the protections to employees against retaliation and discrimination; and Information about laws providing for criminal penalties for knowingly supplying false statements or COVID-19 documentation. It is not sufficient to post the ETS in your breakroom or email it to all employees. This ETS requires that companies institute a written policy and procedure document that incorporates the ETS’ requirements and stipulates how those will be applied throughout the Company. Failure to furnish this information to employees by Sunday, December 5, 2021, could result in fines for non-compliance with OSHA’s ETS.
- Comply with regulations related to time off which includes: Providing the required notice to employees that they will receive four (4) hours of paid time off to receive the vaccination (for a 1 shot regimen) and an additional four (4) hours for the second injection, if required; Allowing an employee sufficient PTO to recover from any side effects as a result of the vaccination; and Developing and disseminating a policy regarding guidelines for returning to the office for an employee who has previously tested positive for COVID-19. This policy must be clearly stated so that employees know when they are permitted to return to work after testing positive and recovering from COVID-19. There are no defined parameters within the ETS, but it is advisable to consider the CDC’s guidelines when preparing this policy.
- Implement a mask mandate for employees who are not fully vaccinated. This mandate must require that: All employees who are not vaccinated (2 shots for Pfizer and Moderna; 1 shot for Johnson and Johnson), must wear a mask, at all times, while indoors.
- All employees must also wear masks if they are not fully vaccinated and are in a vehicle with another person for work purposes. There are currently no exemptions for social distancing or sitting in an enclosed office. The ETS states that the Company is required to “ensure that each employee who is not fully vaccinated wears a face covering when indoors…” The mask mandate is required to be instituted by employers by December 5, 2021. Further, Employers are required to implement policies and procedures that ensure that their employees are compliant with this mask mandate.
- Require proof of current (and future) employee’s vaccination records: Employers must begin obtaining “acceptable” proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. All new hires should be asked their vaccination status during their initial interviews and must provide a copy of their proof of vaccination. OSHA can, and will, request this information during an inspection. Employers should err on the side of caution and have all employees send their vaccination cards to the company’s Human Resources representative for storage in their medical records file. The Employer should maintain an updated list of each employee and their vaccination status.
2. What actions must employers take within sixty (60) days? (by TUESDAY, January 4, 2022)?
Mandatory testing begins for unvaccinated employees: By January 4, 2022, if an employee is not fully vaccinated, then the employer must require that employee undergo COVID-19 testing in seven (7) day cycles. Employers are not required to pay for the testing or allow for paid time off for unvaccinated employees to obtain tests. It is advisable for employers to consider their workforce and in order to avoid a more significant impact due to the labor shortage for certain industries, employers may offer to purchase tests from the local pharmacies and provide them to employees at the end of business on Friday for the employees to take within twenty-four hours of their shift to begin on Monday morning. Employers are required to maintain the employee’s test results and therefore must ask for a copy of the employee’s negative test results to put into the employee’s file.
3. Are there any exemptions?
- Medical and religious: Employees may apply for reasonable accommodations regarding the COVID-19 vaccine on the basis of medical or religious reasons. In the policy that is due on December 5, 2021 Employers should provide mechanisms for employees to apply for exemption status and the deadline to submit those exemptions. However, and to note, there are no known religious or medical reasons to avoid the COVID-19 tests, so even if an employee does satisfy a medical or religious exemption from the vaccine, the employee must still undergo testing weekly.
- Remote workers: The ETS does not apply to solely remote employees who do not go to the office. However, if an unvaccinated employee, is required to be in the office at any time the employee would have to produce a negative test result prior to being permitted in the workplace.
4. What are the consequences for not complying with OSHA’s ETS?
OSHA can fine an Employer $13,653.00 per violation. For example, if an Employer is cited for three unvaccinated persons working indoors and not wearing masks, then the Employer could be fined for each one separately totaling $40,959.00.
If OSHA determines that an Employer is willfully violating its ETS, then it can fine up to $136,532.00 per violation.
5. For Your Information
Employers are required to report any COVID-19 employee hospitalizations directly to OSHA within twenty-four (24) hours of finding out about the hospitalization. If an employee dies from COVID-19, the Employer is required to notify OSHA within eight (8) hours of finding out about the Employee’s death.
Employers are required to make available to employees and their representatives the aggregate number of fully vaccinated employees within the workplace along with the total number of employees at that workplace. Since this provision states specifically “at that workplace”, an Employer with employees at multiple locations is required to provide this information for each separate location.
6. Where do we go from here?
While the lawsuits snake their way through the legal systems, employers must take action to ensure compliance and to avoid any fines or complaints for noncompliance. Employers should not wait and see if an injunction is issued that may delay these deadlines. Given the proximity to the holiday season, employers need to be prepared and ready to comply.
Questions? Contact us!
If you have any questions or need assistance in preparing a policy that complies with the ETS, please do not hesitate to contact our labor and employment attorneys at Shuffield, Lowman & Wilson, P.A. We look forward to helping you protect your business!
*A Federal District Court Judge in the Fifth Circuit issued a temporary injunction pausing the implementation of this new rule citing “grave concerns” as to OSHA’s Constitutionality to issue this rule. However, an injunction may be lifted at any time, and it is best practice for Companies and Employees to be prepared in case that order is lifted and there is no extension of the deadlines.