OSHA Issues COVID-19 Workplace Vaccine and Testing Mandate

COVID Emergency Temporary Standard (ETS) protocol
On November 4th, The Occupational Safety Health Administration released its highly anticipated Emergency Temporary Standard requiring businesses with 100 or more employees to mandate that their employees either get vaccinated against COVID-19 or wear a mask at work and test for COVID-19 on at least a weekly basis.  Employees are defined as full time, part time, Interns, and remote.
On November 6th, the U.S. Court of Appeals for the Fifth Circuit issued a stay order temporarily blocking this OSHA Emergency Temporary Standard
Here are the key points to know:
  • Employees who work remotely majority of their time are not required to be vaccinated, but require a negative COVID-19 test if they will be coming into contact with others at the company.  For the purpose of this Emergency Temporary Standard (ETS), employees who work in the field, such as delivery drivers who spend their time alone in a vehicle are considered remote employees.  Employees who work outside are also not required to be vaccinated. 
  • COVID-19 tests must be an FDA approved test.  Further, the test cannot be both self-administered and self-read and must be performed within 7 days prior to coming into an office. Unvaccinated employees who have been approved for a medical or religious accommodation are still subject to the masking and testing requirements.  This ETS does not require employers to pay for COVID-19 tests, however we are anticipating additional guidance on this point.  There is no exemption from testing for employees who have COVID-19 antibodies. 
  • The deadline for vaccination is January 4, 2022.  The Executive Order for federal employees and contractors to be vaccinated has also been moved to January 4, 2022. 
  • States with their own OSHA division (such as California) have 30 days to roll out their own guidelines that must be at least as strict as the federal OSHA ETS.
  • Employers must keep a record of all employees’ vaccination status and penalties for non-compliance will be costly. 
At this time, it is unclear how long the court’s order will remain in effect.  The ETS has not been repealed, but is merely pending resolution in the courts.  As such, we recommend taking some steps to prepare to comply with this ETS prior to the January 4, 2022 deadline. 
For additional assistance developing proper COVID Emergency Temporary Standard (ETS) protocol, and/or drafting appropriate policies and procedures, please contact a CA HR Services Consultant at 858-504-5216 or email at Info@CAHRservices.com.
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