CMS and OSHA released interim final rules this week detailing the implementation of national vaccine requirements established by President Biden’s executive order in September.Yesterday, the Department of Labor released an unpublished version of the OSHA Emergency Temporary Standard (ETS).
The ETS is effective immediately and will cover 2/3rds of private employers. The OSHA ETS puts into effect the Biden Executive Order mandating all private employers with 100 or more employees ensure their employees are vaccinated against COVID-19, or submit negative weekly tests.
- Private employers with 100 or more employees enterprise-wide (across US locations) at the time these rules become effective
- Independent contractors not included
- Special franchisee, construction and staffing agency rules
- Companies who grow will move into the covered group
- State/local governments, including schools
- Only state/local ordinances/laws that are not conflicting will have effect (i.e., if the state law prohibits vaccine mandates, OSHA ETS will supersede state law. OSHA ETS will be mandated.)
- States with state OSHA plans may adopt these federal rules or similar rules. Some states are threatened with removal of state plan authority for failure to comply with laws as stringent as federal (e.g., UT & AZ)
- Within 30 days of publication (December 5)
- Testing requirements within 60 days (January 4)
- Determine vaccination status of each employee
- Obtain acceptable proof –
- Maintain records/roster
- Unvaccinated must test negative weekly if worker in workplace at least once a week or within 7 days before returning to work if worker is away from workplace a week or longer
- Must wear face covering indoors or in occupied vehicle for work
- Employer not required to pay for testing unless required by law or collective bargaining agreement
- Employer not required to pay for face coverings
- Employee must promptly notify of positive COVID test or receive diagnosis
- Employer must remove employee from workplace, regardless of vaccination status
- May not return to work until meeting criteria
- Must provide paid time off for vaccination and recovery from side effects
OSHA is offering robust compliance assistance to help businesses implement the standard, including a webinar, frequently asked questions and other compliance materials.
In conclusion, employers subject to the ETS must determine whether they will take a vaccine-only or combined vaccine and testing/face covering approach to compliance and must develop the required written policies and communicate those policies to employees so they have ample time to receive their COVID-19 vaccines. Employers should work with legal counsel to develop their written policies and to address any reasonable accommodation requests received by employees.
If needing employment law assistance in implementing these new rules, contact your World Insurance Associates representative so that they can connect you a Jackson Lewis P.C. council in order to receive the WIA arrangement. For our PEO clients, please speak with in-house council and HR.