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OSHA Releases Vaccinate-or-Test Emergency Temporary Standard

Today, OSHA released its Emergency Temporary Standard (ETS) on mandatory vaccinations for large employers, which will take effect tomorrow, November 5, 2021. The OSHA ETS requires employers with 100 or more employees to verify employee vaccination status and ensure that employees who are not fully vaccinated are wearing masks in the workplace by December 5, 2021. Employers will have until January 4, 2022 to ensure that employees who are not fully vaccinated submit proof of a negative COVID-19 test each week.

The ETS will not apply to employees who do not report to a workplace where other individuals or customers are present, while they are working from home, or employees who work exclusively outdoors.

The Emergency Temporary Standard sets two deadlines, December 5, 2021, for most provisions, and January 4, 2021, for proof of a negative COVID test each week. Specifically:

By December 5, 2021:

· Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.

· Employers must pay workers for the time it takes to get vaccinated (up to 4 hours) and provide paid sick leave for workers to recover from any side effects of vaccination.

· Employers must ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person, except in limited circumstances.

· Employers must provide to employees the following in a language and at a literacy level the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) The CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements and documentation.

· Employers must require employees 1) to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; (3) keep removed employees out of the workplace until they meet the criteria for returning to work.

· Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

· Employers must make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written consent of that employee. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at the workplace, along with the total number of employees at the workplace.

By January 4, 2022:

· Employers will need to ensure employees who are not fully vaccinated against COVID submit proof of a negative COVID test each week.

· Employers do not need to pay for any costs associated with testing under the Emergency Temporary Standard.

OSHA also created a summary of the ETS, which is attached.

OSHA ETS Summary
Download PDF • 721KB


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