November 9, 2021

syringe-5882593_200w.png100+ Employees? New OSHA Standard on Vaccinations & Testing Pending

One day after the Occupational Safety and Health Administration (OSHA) released an Emergency Temporary Standard (ETS) titled “COVID-19 Vaccination and Testing; Emergency Temporary Standard” mandate, the U.S. Court of Appeals for the Fifth Circuit granted a nationwide stay of the OSHA ETS, which was due to go into effect November 5. While the ETS is stayed, employers do not have to comply with its terms. However, that stay could be lifted by the Fifth Circuit or the Circuit that gets the consolidated cases for review on the merits. If the stay is lifted, employers will have to comply with the terms of the ETS. So, as a best practice, employers should start creating policies and procedures for compliance with the ETS, so they are prepared if/when the stay is lifted.

To help employers the key points of the 150+ page ETS, ARTBA has issued a summary (below) as well as providing links to additional documents and websites that may be helpful (see last paragraph).

The ETS requires affected employers in all industries to:

  • Assure their employees are either fully vaccinated by January 4, 2022, or taking a weekly COVID-19 test and wearing masks when in the workplace;
  • Remove employees who test positive from the workplace;
  • Provide up to four hours of paid leave for employees to get vaccinated and, if necessary, a reasonable amount of paid sick leave to recover from any vaccination side effects (note that New York already entitles workers up to 4 hours leave for each vaccine shot, including the booster shot);
  • Develop a written workplace COVID-19 vaccination policy;
  • Determine the vaccination status of all employees and maintain an employee vaccination status and COVID-19 test results roster as though they are employee medical records while the ETS remains in effect;
  • Provide employees with information about the ETS and vaccines;
  • Report any work-related COVID-19 deaths within eight hours and work-related COVID-19 hospitalizations within 24 hours to OSHA; and
  • Other than the January vaccination deadline, all other requirements of the ETS must be fulfilled by December 5th

The ETS does not require employers to pay for the cost of testing unvaccinated employees, and, also notes that vaccines are generally provided free of charge nationwide.

The following ETS provisions are particularly relevant to transportation construction employers:

  • Employees working “exclusively” outdoors are exempt from the ETS. While OSHA cites certain construction disciplines as examples, its commentary suggests that only a small percentage of those employees will be considered exempt. To qualify for the exemption, the employee must spend only “de minimus” or “brief” time indoors during the workday, such as visiting a trailer or restroom, and may not travel in vehicles with work colleagues.
  • Generally, workers on a multi-employer construction worksite are not considered together. Each company is only responsible for its own employees. A smaller contractor or supplier employing less than 100 persons would be fully exempt from the ETS, even though they have employees working on a larger site with those of other firms.
  • On the other hand, a contractor who employs 100 or more people, yet has them spread out over multiple sites in smaller numbers, is still covered by the ETS.
  • ARTBA raised these and other issues with Biden administration officials in a series of letters and meetings while it was formulating the ETS. The GCA was involved in providing input to ARTBA on areas of concern.

OSHA’s ETS announcement also includes revisions and clarifications to a separate executive order previously announced by the White House, which mandates vaccinations for employees of all firms doing direct business with the federal government:

  • New and revised direct federal contracts will postpone the employee vaccination requirement to January 4, 2022, aligning it with the ETS vaccination deadline.
  • Direct federal contractors will be covered by the executive order mandating vaccines, but not the OSHA ETS.

While the ETS takes effect right away, OSHA will be accepting comments for 30 days on possible expansion of these requirements to smaller employers, as well as potential widening of requirements such as masking in the workplace.

ARTBA will present a free webinar at 12:30 p.m. on November 12th featuring employment law expert Phillip Russell of Ogletree Deakins. He will share his insights on the ETS and answer questions.  Registration is now open here.
The text of the rule, frequently asked questions, OSHA fact sheets, ETS Summary, policy templates on mandatory vaccinations and vaccination or testing, fact sheets on workers rights, penalties for knowingly supplying false information, and reporting COVID-19 fatalities and in-patient hospitalizations, and an introductory webinar can be found at the agency’s ETS website or by clicking the links provided herein.

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