OSHA Publishes General Industry Emergency Temporary Standard

OSHA’s long-awaited general industry COVID-19 emergency temporary standard (“ETS”) was officially published today and became effective immediately for employers in those states without “state OSHA” plans. However, employers covered by federal OSHA still have until December 5, 2021, to comply with all the requirements, except the weekly testing requirements, which do not take effect until January 4, 2022. As expected, the ETS only applies to employers with 100 or more employees in the aggregate, including part-time employees. Generally speaking, covered employers will be required to do the following:

  • Adopt a mandatory vaccination policy unless they opt for a policy requiring unvaccinated workers to undergo weekly testing and wear a face covering at work. OSHA strongly encourages employers, however, to implement a mandatory vaccination policy subject to applicable medical and religious accommodations.  
  • Provide paid time for workers to get vaccinated and reasonable sick leave to recover from any side effects that prevent them from not working. 
  • 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.
  • Ensure each worker who is not fully vaccinated is tested at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer).
  • Require in most circumstances, unvaccinated employees to wear face coverings when indoors or when occupying a vehicle with another person for work purposes.

As expected, the ETS does not require employers to pay for testing or face coverings, although it notes that other laws or collective bargaining agreements might require such payments. The ETS further states that it does not apply to fully remote employees or those working exclusively outdoors.

OSHA calculates the ETS will apply to more than 84 million workers. How long the ETS will remain effective is a more interesting question. It will expire in 6 months unless it is extended by OSHA or is replaced by a “permanent” standard. We believe that is unlikely to occur before May. Yesterday, two Wisconsin-based manufacturers filed an emergency motion to stay the ETS in the 7th Circuit. Another party filed a similar action in the 6th Circuit. Today, 11 states challenged the ETS in the Eight Circuit. There will be more such filings in the coming days. Eventually, the federal court’s system will select randomly the Circuit Court that will hear the matter. Historically, OSHA has had little success in defending these ETS’s in court. We potentially foresee a similar outcome ultimately here in that OSHA will have an uphill battle to establish, among other things, that COVID-19 still presents a “grave” danger and that the ETS is “necessary” to protect employees. In the absence of a “stay” being issued by a court to enjoin OSHA from continuing to enforce the ETS, however, employers need to be in compliance by December or risk the possibility of receiving citations and possibly significant proposed penalties from federal OSHA or state OSHA plans that adopt this standard.

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