OSHA Emergency Temporary Standard (ETS) for Employers with 100 or More Employees

The much-anticipated OSHA ETS has been announced. By this Bulletin, I am providing you general guidance. As with most such agency rulemaking, the situation continues to be somewhat fluid.
On November 5, 2021, OSHA will officially publish its ETS aimed at minimizing the spread of COVID-19 in the workplace. This ETS applies to employers with 100 or more employees. It will require the following:
· By December 5, 2021, employers will be required to develop, implement, and enforce a mandatory COVID-19 Vaccination Policy or, alternatively, a COVID-19 Vaccination/Weekly Testing Policy.
· Unvaccinated workers must begin wearing face coverings in the workplace, with the following exceptions:

  • Employees alone in a closed space;
  • While eating or drinking;
  • While wearing another respiratory or face mask;
  • When face coverings are infeasible or create a greater hazard.

· By December 5, 2021, employers must ascertain the vaccination status of their employees.
· By January 4, 2022, employers are required to ensure that their employees are either a) fully vaccinated, or b) provide a negative COVID-19 test result at least weekly.
Who Does This Apply To?
This ETS applies to employers with 100 or more employees. Ascertaining the number of employees is company-wide, not at individual locations. It also includes part-time workers, employees working from home, and minors to the extent that they are employed. Independent contractors are NOT counted. Employees of independently owned and operated franchisees are counted at the franchisee, not franchisor, level.
Scope of the ETS
Even in unionized workplaces, employers must follow the minimum requirements of the ETS. If the employer is governed by the CMS or federal contractor requirements, they should follow those more specific standards and are not required to also follow the OSHA standard (CMS has issued its interim final rule that is applicable to Medicare and Medicaid certified providers).The OSHA ETS requirements also do not apply to employees who do not report to a workplace where other employees are present; employees working from home; or employees that work exclusively outdoors.
OSHA ETS requirements:1. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy or, alternatively, a policy which allows employees to elect to get vaccinated OR undergo mandatory weekly COVID-19 testing and face covering requirements in the workplace (by December 5, 2021).
2. Covered employers must determine each employee's vaccination status and maintain a roster and records of vaccination status such as a copy of the employee's vaccination card (by December 5, 2021).
3. Covered employers must provide up to four hours of paid leave for employees to receive a vaccine (per dose) and reasonable paid time off for employees to recover from any vaccine side effects.
4. Covered employers must ensure that unvaccinated workers are tested weekly and require employees to provide prompt notice of positive COVID-19 test results.
5. Covered employers must report work-related COVID-19 fatalities to OSHA within eight (8) hours of receiving notice.
6. Covered employers are NOT required to pay for weekly testing for unvaccinated workers under the OSHA ETS, but may be required to do so under Illinois law.
7. Covered employers are NOT required to continue to employ workers that do not comply or refuse to comply with the employer's policy.
It is expected that, in the relatively near future, OSHA will come out with sample vaccination policies that it will deem acceptable. I will share those upon receipt. If you have questions, concerns, or simply need assistance, please do not hesitate to contact Lorna K. Geiler at Meyer Capel.