6 Things Employers Should Know About OSHA’s ETS

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On November 5, the Occupational Safety and Health Administration (OSHA) published an emergency temporary standard (ETS) on vaccination and testing in the Office of the Federal Register in an effort to minimize the risk of COVID-19 transmission in the workplace. OSHA’s ETS requires workers at large companies to be vaccinated against COVID-19 or consent to weekly testing and wear a mask in the workplace. Employees who test negative must be removed from the workplace. For employers to maintain compliance with OSHA’s ETS, they first need to understand how the rules apply to their business. Here are six things employers should know about OSHA’s ETS.

1) What is an ETS?

To justify an ETS, OSHA must determine that workers are in grave danger, and an emergency standard is needed to protect them from that danger, allowing OSHA to bypass temporarily bypass the formal rulemaking process. An ETS takes effect immediately and remains in effect until a permanent OSHA standard replaces it.  

According to OSHA, unvaccinated employees are more likely to get and transmit COVID-19 in the workplace than vaccinated employees, which can lead to serious illness and death. OSHA argues that the ETS can prevent these devastating consequences by strongly encouraging vaccination and protecting those who remain unvaccinated through regular testing, requiring the use of face masks, and removing infected employees from the workplace. 

2) What businesses does the ETS apply to?

While there are a few exceptions, this standard generally applies to all workplaces under OSHA’s authority and jurisdiction with 100 employees or more. It does not apply to employees who don’t report to a workplace with other employees, such as those who work from home, or exclusively outdoors. 

3) What do employers need to do to comply with the ETS?

Employers who fall under the standard must create, implement, and enforce a COVID-19 vaccination policy or a testing protocol that requires unvaccinated employees to test negative weekly and wear a mask while at work. Employees who test positive or are diagnosed with COVID-19 must immediately notify employers. Employers must remove them from the workplace until they meet the requirements for returning to work. 

Employers are responsible for determining the vaccination status of each employee. Additionally, they must obtain proof, maintain a record and a roster containing their status. 

It’s important for employers to know that the ETS does not require employers to pay for the cost of weekly testing for unvaccinated employees. However, certain laws, regulations, or agreements may require them to assume the costs. 

4) What happens if employers don’t comply with the ETS?

Companies that fail to comply with the regulations could be subject to penalties amounting to nearly $14,000 per violation. This amount may increase tenfold for employers that willfully violate the rule. 

5) Do employers need to report positive cases?

The ETS does not require employers to report positive cases to OSHA; however, they must notify them about work-related COVID-19 fatalities within 8 hours of learning about them. Employers must also notify OSHA about work-related hospitalizations within 24 hours. 

6) What records do businesses need to disclose to OSHA?

Under the ETS, OSHA, employees, and employee representatives can request records from employers to determine compliance.

If requested by OSHA, employers must provide the aggregate number of fully vaccinated employees and the total number of employees at the workplace within four business hours. Employers have until the end of the next business day if an employee or a representative requests this information.

Employers also have four hours to provide OSHA with their written policies for compliance with the ETS and until the end of the next business day to provide any other requested documentation.

Employer Decisions

To remain compliant with OSHA’s ETS, employers need to review and possibly revise their existing policies. They will also need to decide if they will require vaccination or allow their employees to opt for weekly testing.

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