OSHA Issues Emergency Temporary Standard – Applies to Most Employers in an Effort to Minimize the Risk of COVID-19 Transmission in the Workplace

On Thursday, November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced a new Emergency Temporary Standard (“ETS”) to increase protections for more than 84 million workers.

The ETS covers most of the nation’s private sector workforce. The ETS also covers public sector workers employed by state or local governments in states, such as New Jersey, that participate in OSHA State Plans. Such coverage extends but is not limited to educators and school staff.

Under the new standard, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, or a policy which requires employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

In addition, covered employers are required to do the following:

  1. Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain such records;
  2. Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis and remove the employee from the workplace regardless of vaccination status;
  3. Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly or within 7 days before returning to work if the worker is away from the workplace for a week or longer; and
  4. Ensure that, in most circumstances, 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 ETS does not require employers to pay for testing or face coverings, although they may be required to through other laws, regulations, collective bargaining agreements, or other collective negotiated agreements.

Pursuant to the OSHA ETS, covered employers are employers with at least 100 employees firm or company wide at any time during the duration of the ETS. The ETS does not apply to workplaces that are covered under the Safer Federal Workforce Task Force or in settings where any employees provide healthcare services or healthcare support services when subject to the Emergency Temporary Standard for healthcare employers.

The ETS does also not apply to the employees of covered employers who do not report to a workplace where other individuals, such as co-workers or customers are present; employees who work at home; employees who work exclusively outdoors; employers with fewer than 100 employees in total; and public employers in states without State Plans.

The ETS is effective for covered employers as of Friday, November 5, 2021, upon its publication. However, employers have 60 days to comply with the testing requirements of the ETS and 30 days to comply with the remaining provisions.

If you have any questions about this alert or would like to speak to an attorney concerning the issue of the OSHA ETS, please contact the authors, John L. Shahdanian II and Valentina Scirica, or any of the other members of MARC Law’s Employment Counseling Group.
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