OSHA's COVID-19 Vaccination Emergency Temporary Standard
By Susen Trail | 12/02/2021
As I'm sure you are aware, the Biden administration has tasked OSHA with putting standards in place to address COVID-19 in the workplace. We'll start with "the basics."
An Emergency Temporary Standard, ETS, is allowed to bypass the notice and comment proceedings for 6 months and becomes effective as soon as it is published in the Federal Register. To qualify for an ETS OSHA "determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger." 29 U.S.C. § 655(c)(1)
There are now two OSHA Emergency Temporary Standards (ETS) regarding COVID. The first is the COVID-19 Healthcare ETS which became effective June 21st, 2021. This ETS addresses all workplaces where any employee provides healthcare services or healthcare support services. The purpose is to ensure sufficient parameters and guidelines are in place for those providing frontline care, for which COVID exposure is both expected and a routine occurrence. The details of this standard can be found here, and is not the focus of this blog.
The second standard, and the emphasis of today's blog, is the COVID-19 Vaccination and Testing ETS. This was filed in the Office of the Federal Register on November 4th and became effective November 5th. This standard is the subject of much debate and contention. It's future is uncertain, and will be the topic of a follow-on blog posts and updates.
This ETS is standard 1910.501, Vaccination, testing, and face coverings.
- 1910 standards are for General Industry. Other industries, except agriculture, link to this standard:
1910.501 is an Emergency Temporary Standard Released 11/5/21. Its transition to Permanent Standard has not been set (all ETS's have historically been interim standards until they become permanent.)
Prior to the court ruling banning the enforcement, the standard was set to begin 12/6/21 for all but the vaccination portion of the standard, which was to be enforced starting January 6, 2022. The mandate is currently set to be heard by the 6th Court of Appeals.
Should the courts rule that this mandate will be allowed to proceed, the following are highlights of what you need to be aware of.
At this time, employers with a total, all facilities and all locations, of 100 or more employees are required to comply with this standard. The count is not Full Time Equivalent employees. Part time and remote workers are each counted as 1.
This standard requires employers to pay for time off when employees get vaccinated and full pay if they experience side effects from the vaccine that prevent them from coming to work. Employers with 500 or less employees can reduce the amount to 2/3 pay in the third week.
The employer is required to write a program, provide training, and keep documentation provided by the employees regarding their medical status in the vaccination process.
Unvaccinated is defined as anyone who has 1 of 2 vaccine shots, no vaccine shots, or are within the two-week window following the final vaccine shot.
The unvaccinated are required to be tested every 7 days for COVID and provide documentation of completed testing and results. The employer is not required to pay for the tests or provide time away from work for the employee to get tested. FYI - Average incubation period for COVID is 5 days, average symptom onset 11.5 days.
The unvaccinated are required to wear a "face covering" indoors and in vehicles with one or more people for work. Face coverings are not respirators, they are classified by the CDC as source controls. When employees wear respirators for COVID exposures employers must comply with 1910.504 Mini Respiratory Protection standard rather than 1910.134.
Those who quit or get fired due to the vaccination mandate will not qualify for unemployment benefits.
Additional resources can be found at:
Do you have unanswered ETS compliance questions? Drop us a line!
Also know that we are currently working on implementing the capabilities to provide a means of easily capturing, storing and reporting on vaccination and testing status in order to meet this requirements, should the ETS receive new life.
If you are interested in this capability and would like to see a demo ,just fill out our Contact Form and write "501 demo" in the message box!
This document is not intended to be exhaustive, nor should any discussion or opinions be constructed as legal advice. Readers should contact legal counsel for legal advice.