In September, the Biden Administration announced its plan to have OSHA issue an Emergency Temporary Standard (“ETS”) requiring employers with one hundred or more employees to ensure their employees are either fully vaccinated or tested for COVID-19 on a weekly basis. That promised ETS was published today. Linked here are OSHA’s summary of the ETS and the FAQ’s relating to the ETS.  As it currently stands, there is a 30 day comment period, so employers within the scope of the ETS do not have to comply with its provisions for at least 30 days—and for the provisions relating to weekly testing for unvaccinated employees, that deadline is 60 days.

As to which employers are covered under the ETS, it generally applies to private employers in industries generally covered by OSHA (except healthcare) with more than 100 employees total at all of its locations, including those who work remotely. However, there are exceptions to the requirements of the ETS for employees who work remotely and employees who work outside, as well as others. Below are some of the important employer requirements under the ETS:

  • Provide paid time to employees to get vaccinated and to allow for paid leave to recover from any side effects (employers are not required to pay for the actual testing);
  • Determine the vaccination status of each employee, obtain proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status;
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis, and immediately remove the employee from the workplace, regardless of vaccination status;
  • Ensure each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the employee is away from the workplace for a week or longer); and
  • Ensure that each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes (employers are not required to pay for face coverings).

Moving forward, we anticipate that there will be no shortage of legal challenges to the planned rule, and will keep you advised as to any and all updates on the ETS.