Is the COVID-19 ETS a law?

Legally as of today, yes, however that could change in the future.

What does this mean for your company?

A federal appeals court has given the Occupational Safety and Health Administration (OSHA) the authority at this time to push forward with the enforcement with of the emergency temporary standard (ETS) for COVID-19 Vaccination and Testing.

At its core the ETS requires employers with more than 100 employees  need to implement and enforce policy around mandatory full vaccination against COVID-19 by January 4th, 2022, or submit to weekly COVID-19 testing combined with wearing a mask.

In light of this ETS there are been a number of legal appeals to this decision and even OSHA has stated that they will utilize “enforcement discretion” to give employers additonal time in order to comply. OSHA has stated they will not issue citations for non-compliance with the ETS before January 10, 2022, citations will not be issues before February 9, 2022 for failure to enforce testing, as long as companies are acting in good faith to comply with the orders.

What are the ETS Requirement?

Employers must comply with the following ETS provisions no later than January 10, 2022:

  • Develop a written policy mandating that employees either be fully vaccinated, or be subject to weekly COVID-19 testing and wear a mask at work, with few exceptions.
  • Determine the vaccination status of all workers by obtaining acceptable documentation of proof of vaccination (e.g., a vaccination card), and maintain a roster of the vaccination status of all employees.
  • Fully remote workers, employees who work exclusively outside, and workers who not work in a location where others are present, do not have to be covered under the “vaccination or testing” policy.
  • Provide up to 4 hours of paid time for employees to receive the vaccination, and provide “reasonable” paid sick leave to recover from any side effects from the vaccine.  (Employers may allow employees to use vacation or PTO for these purposes.)
  • Exclude employees from the workplace immediately in the event of a positive COVID-19 test or diagnosis.
  • Provide employees with certain information, including what the ETS requires of employers, the company’s policy, information about vaccine safety and efficacy (through an OSHA-approved notice prepared by the CDC), and information about the criminal penalties for fraudulent statements and documentation.
  • Report work-related deaths due to COVID-19 to OSHA within 8 hours, and work-related hospitalizations within 24 hours.  (This reporting requirement was first promulgated in OSHA guidance in 2020.)

Employers must comply with the following ETS provisions no later than February 9, 2022:

  • Implement and begin enforcing the “vaccination or testing” policy.
  • OSHA states that will exercise enforcement discretion on the February 9 deadline with respect to testing for employers who making “reasonable, good faith efforts” to comply.

What does your business need to do to prepare?

  1. Determine if your company or state or local government employer is covered by the ETS.
  2. Determine the vaccination status of your workforce.
  3. If weekly testing is going to be needed, begin planning on how to accomplish that testing.
  4. Prepare a compliant “vaccination or testing” policy.
  5. Prepare a communication strategy.
  6. Prepare to process and document requests for exemptions from the vaccine mandate (or develop that process if it is not in place already)
  7. Confirm procedures are in place to report work-related COVID-19 deaths and hospitalizations as required by the ETS
  8. Determine if state law or executive order conflicts with any ETS requirement for any work locations.
  9. Contact 1 Stop Compliance to help you develop and implement the documentation required for this process to reduce your risk of non-compliance.

What are the penalties for non-compliance?

OSHA is authorized to issue citations, and the penalties for noncompliance under the be severe: $13,653 per violation, and up to $136,532 for willful or repeated violations.