OSHA Releases COVID-19 Emergency Temporary Standards

On November 4, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued its long anticipated COVID-19 emergency temporary standards applicable to employers with 100 or more employees (Covered Employers”). Under the emergency temporary standards, Covered Employers must require their employees to be fully vaccinated or tested weekly for COVID-19. Here’s what you need to know about the emergency standards.

What do the emergency temporary standards require?

The emergency temporary standards apply to employers with 100 or more employees (“Covered Employers”) and requires that Covered Employers:

• COVID-19 Vaccination Policy: Covered Employers are required to develop, implement and enforce a mandatory COVID-19 vaccination policy that requires all employees to be fully vaccinated unless: (1) the employee is medically excepted; (1) a medical necessity requires a delay in vaccination; or (3) the employee requests a reasonable accommodation based on disability or sincerely held religious beliefs.
• COVID-19 Vaccination-Testing Policy: Alternatively, Covered Employers may develop, implement and enforce a COVID-19 vaccination-testing policy allowing employees to chose to either be fully vaccinated or undergo weekly COVID-19 testing and wear a face mask in the workplace.
• Record Keeping: Covered Employers are required to maintain, and make available for inspection and copying by OSHA, records of the vaccination status of each employee with proof of vaccination status (i.e., a copy of the employee’s vaccination card). Covered Employers must also make available to employees and employee representatives information on the aggregate number of fully vaccinated employees at a workplace with the total number of employees at that workplace.
  Time-Off for Vaccinations: Provide employees with reasonable time, including up to 4 hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced by employees following each dose.
• Weekly Testing for Non-Fully Vaccinated Employees: For Covered Employers opting to implement a COVID-19 vaccination-testing policy, ensure that non-fully vaccinated employees are tested weekly for COVID-19 if the employee is in the workplace at least once per week, or within 7 days before returning to the workplace if the employee has been aware from the workplace for a week or longer. Covered Employers are not required to pay for the cost of testing unless required by other laws or collective bargaining agreements.
• Positive COVID-19 Notification: Covered Employers are required to implement policies requiring employees to promptly provide notice if they receive a positive COVID-19 test or are diagnosed with COVID-19. Employees testing positive for COVID-19 or diagnosed with COVID-19 are required to be immediately removed from the workplace, regardless of vaccination of status, and may not return to the workplace until they meet the criteria for returning to work.
• Face Coverings: Covered Employers are required to implement policies providing that employees who are not fully vaccinated wear face coverings when indoors or in a vehicle with another person for work-related purposes. Employers may not prevent employees from voluntarily wearing face coverings even if fully vaccinated.
• Employee Notices: Covered Employers are required to provide employees with information related to the emergency temporary standards and workplace policies and procedures, the CDC document entitled “Key Things to Know About COVID-19 Vaccines,” information about protections against retaliation and discrimination, and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
• COVID-19 Deaths and Hospitalizations: Covered Employers are required to report work-related COVID-19 deaths within 8 hours or work-related COVID-19 in-patient hospitalizations within 24 hours of the Covered Employer learning of the death or hospitalization.

Who do the emergency temporary standards apply to?

The emergency temporary standards apply to private employers with 100 or more employees including construction companies. State and local government employers in states with “State Plans,” including California, are subject to their State Plan, but State Plans must be at least as effective as the emergency temporary standards.

The number of employees is based on the number of employees across the U.S., not just in specific locations, and applies to all employees whether working from home or not and whether they are full-time or part-time. Employee working exclusively outdoors are also counted toward the number of employees. However, independent contractors are not counted toward the number of employees.

Construction companies working on federal projects, in addition to being subject to OSHA’s emergency temporary standards, are also subject to the President’s Executive Order No. 14042 issued on September 9, 2021. As required under the Executive Order, the U.S. Safer Federal Workforce Taskforce issued guidelines applicable to federal contractors and subcontractors on September 24, 2021.

When do the emergency temporary standards take effect?

The emergency temporary standards take effect immediately. Covered Employers must comply with all requirements other than the testing requirements by December 6, 2021 and must comply with the testing requirements beginning January 4, 2022.

While the emergency temporary standards take effect immediately, it is expected that litigation may delay implementation of the emergency temporary standards, and in fact this weekend the 5th District Court of Appeals granted an emergency stay of the temporary standards after the Louisiana Attorney General filed a lawsuit challenging the standards.

While the outcome of that lawsuit, as well as others that have been filed or are expected to be filed are uncertain, Covered Employees may wish to take steps to implement the emergency temporary standards in the event that the standards survive legal challenge.

Note: The U.S. Safer Federal Workforce Taskforce’s guidelines issued on September 24, 2021, which currently requires federal contractors to have their employees be fully vaccinated by December 8, 2021, will be revised to extend the deadline to January 4, 2022.

The Emergency Temporary Standards are “Temporary.” What does that mean?

The emergency temporary standards are indeed “temporary” in the sense that they only remain in effect for six months unless adopted as a regulation. However, while temporary, OSHA rules allow it to implement “emergency” standards immediately.

The temporary emergency standards also preempt less-restrictive state and local laws and specifically invalidates state and local laws that ban or limit a Covered Employer’s authority to require vaccinations, face coverings, or testing of employees.

Where can I get further information on the temporary standards?

The U.S. Department of Labor has published a FAQ on the emergency temporary standards.