On Nov. 4 OSHA announced a new emergency temporary standard (ETS), aiming to protect more than 84 million workers from the spread of coronavirus in the workplace.

“The nation's unvaccinated workers face grave danger from workplace exposure to coronavirus, and immediate action is necessary to protect them,” according to OSHA.

Under the new standard, employers covered by the order must either develop, implement and enforce a mandatory COVID-19 vaccination policy, or adopt a policy requiring employees to either be fully vaccinated or undergo regular COVID-19 testing and wear a face covering at work. It also requires employers to provide workers with paid time to get vaccinated and paid leave to recover from any side effects.

The ETS covers businesses with 100 or more employees (firm or company-wide) and provides options for compliance.

The ETS also requires employers to do the following:

• Determine each employee’s vaccination status, obtain acceptable proof of vaccination from employees and maintain records and a roster of such.
• Require employees to promptly notify the employer when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status, and must not allow them to return to work until they meet required criteria.
• Ensure that each unvaccinated worker is tested for COVID-19 at least weekly (if they are in the workplace at least once a week) or within seven days before returning to work (if they are away from the workplace for a week or longer).
• Ensure that, in most circumstances, all unvaccinated employees wear a face covering when indoors or when occupying a vehicle with another person for work purposes.

The ETS does not require employers to pay for testing. However, according to OSHA, employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements or other collectively negotiated agreements. Employers are also not required to pay for face coverings.

OSHA noted that, “The ETS is effective immediately upon its publication in the Federal Register. Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication.” However, a stay was placed on the order by the Fifth Circuit Court of Appeals the day after it was issued and remains in place pending further judicial review.

The agency added that the ETS also serves as a proposal for normal rulemaking for a final standard. OSHA is seeking comment on all aspects of this ETS and whether the agency should adopt it as a final standard.

In responding to the new ETS for NECA, Eric J. Conn, with Conn Maciel Carey LLP, noted that, “At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation.”

He added that, “We are extremely pleased to report that the rule aligns very well with positions for which we advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as record preservation requirements, grandfathering prior vaccine verification efforts, and other elements. We think OSHA and the White House actually listened to our views and the compelling rationale we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers. You all deserve great credit for providing us with the ammunition necessary to support these positions.”