OSHA Issues COVID-19 Vaccination or Testing ETS

By Guy Burdick

The Occupational Safety and Health Administration (OSHA) November 4 issued an emergency temporary standard (ETS) requiring employers with 100 or more employees to implement a program of COVID-19 vaccination or regular testing and face coverings to protect unvaccinated workers but not requiring employers to pay for testing. The emergency rule is scheduled to appear in the November 5 Federal Register and requires employers to implement a vaccination or testing program by January 4, 2022.

The Centers for Medicare and Medicaid (CMS) issued an interim companion rule requiring COVID-19 vaccinations for staff at Medicare- and Medicaid-certified healthcare providers and suppliers. Facilities receiving Medicare and Medicaid funds must develop and implement programs to ensure all staff are fully vaccinated.

“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” Secretary of Labor Marty Walsh said in a statement.

“We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19.”

The ETS requires employers to:

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status.
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis.
• Remove infected employees from the workplace, regardless of vaccination status, and not allow them to return to work until they meet required return-to-work criteria.
• Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly if the worker is in the workplace at least once a week or within 7 days before returning to work if the worker is away from the workplace for a week or longer.
• Ensure that each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The rule also requires employers to provide up to four hours of paid time off to receive each vaccination dose and reasonable time and paid sick leave to recover from side effects experienced following each dose. The rule does not include an exemption for “natural immunity” resulting from a previous COVID-19 infection or a face covering requirement for fully vaccinated workers, but an employer may not prevent any worker from voluntarily wearing a face covering. The rule defines a face covering as a covering that is made with two or more layers of a breathable, tightly woven fabric that completely covers the nose and mouth and is secured to the head with ties, ear loops, or elastic bands that go behind the head. Face coverings may not have slits, exhalation valves, visible holes, punctures, or other openings. If neck gaiters are worn as face coverings, they should have two layers of fabric or be folded to make two layers. The rule has no specification for face covering efficacy like ASTM International’s F3502 standard barrier face coverings.

Infected employees removed from the workplace must follow the Centers for Disease Control and Prevention’s (CDC) isolation guidelines, resuming contact with others 10 days after symptoms first appear and 24 hours if they have no fever without the use of fever-reducing medications and other symptoms have improved. Employees also may return to work if they have received a return-to-work recommendation from a licensed healthcare provider.

The rule relies on a handful of controls—face coverings, vaccination, testing, and medical removal—to protect workers from COVID-19 in addition to its recordkeeping requirements. It does not require the employee training or controls, such as barriers, air filtration and ventilation, and social distancing, contained in some of the emergency or permanent COVID-19 rules in California, Michigan, Oregon, and Virginia.

OSHA has requested comment and information about other COVID-19 controls. The agency also is seeking comment and information about applying the ETS to employers with fewer than 100 employees; prior workplace COVID-19 infections; experience with COVID-19 vaccination policies; testing and removal; face coverings, including whether the agency should include a specification for face coverings that meet ASTM F-3502; and education materials.

Any emergency rule must satisfy a two-part test—evidence of a grave workplace danger and the need for a temporary rule—under OSHA’s emergency rulemaking authority in the Occupational Safety and Health Act. Several emergency rules issued in the 1970s and 1980s were successfully challenged in federal courts.