The Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act was passed on May 15, 2020 to respond to the COVID-19 outbreak and its impact on the economy, public health, state and local governments, individuals, and businesses. Part of this bill involves protecting workers by requiring the Occupational Safety and Health Administration (OSHA) to issue an enforceable emergency temporary standard (ETS) that covers all workers from COVID-19 infections.

OSHA announced the COVID-19 Vaccination and Testing ETS on November 4, 2021. Just one day later, the Fifth U.S. Circuit Court of Appeals put a temporary halt to the ETS by granting an emergency motion/stay pending an expedited review because of “cause to believe there are grave statutory and constitutional issues with the [ETS]”. November 12, 2021 marked another court ruling against the ETS vaccine directive. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.”

According to the OSHA website, “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation”–leaving many employers questioning how to proceed.

ETS at a Glance

The COVID-19 ETS requires employers with more than 100 employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy or a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering.

According to Deputy Assistant Secretary of Labor for OSHA Jim Frederick, “While vaccination remains the most effective and efficient defense against COVID-19, this ETS will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus.”

Additional provisions of the ETS include the following:

• Determine, obtain acceptable proof of, and maintain accurate records of the vaccination status of every employee.
• Provide paid time off to workers to get vaccinated and to recover from any side effects.
• Require each worker who is not fully vaccinated to test weekly for COVID -19. Note: Employers are not required to pay for testing.
• Ensure every employee who has not been fully vaccinated wears a face covering when indoors or in a vehicle with another person for work purposes. Note: Employers are not required to pay for face coverings.
• Require employees to provide prompt notice when they test positive for COVID-19 so they may be removed from the workplace (whether vaccinated or not) until they meet required criteria to return to work.

These new mandates may also be accompanied by higher risk of OSHA enforcement and significantly increased penalties depending on the status of the Build Back Better Act (BBBA) (see related article).

Compliance Deadlines

OSHA has recently extended the comment period for the COVID-19 ETS by 45 days to January 19, 2022. If the ETS moves forward—which is still an unknown at this time—covered employers would have 30 days to develop, implement, and enforce their COVID-19 vaccination and/or testing policy. Employers then have 60 days for employees to actually be fully vaccinated or begin testing requirements. This ETS also serves as a proposal for normal rulemaking of a final standard.

Preparing to Comply

Many legal experts recommend employers prepare to comply regardless of ongoing court challenges and litigation. Corbin Carter, an attorney with Mintz in New York City, said in a Society for Human Resource Management (SHRM) article, “The Supreme Court may ultimately weigh in. But employers likely cannot await a court ruling on the new rule’s fate before properly engaging in the appropriate tasks—convening stakeholders, reviewing the relevant rules, assessing options—given the rule’s tight timeline.” 

When—or if—this mandate goes forward, tracking and documentation of vaccination and/or testing status will be a key part of complying with standards. This is not unlike other records OSHA requires for training, inspections, incidents, etc. A document/compliance management system (CMS) can allow for easier tracking and access to employee records to demonstrate compliance with the ETS. If your company is preparing for the ETS—or if you are simply interested in developing a strong, organized CMS—KTL can integrate our expertise in OSHA regulatory compliance into our SharePoint data management solutions to develop a system that will meet your organization’s needs.

OSHA intends to offer robust compliance assistance to help businesses implement the ETS and will continue to monitor COVID-19 infections and deaths as the pandemic evolves to change measures, as needed. Get more information and guidance from OSHA on the COVID-19 Vaccination and Testing ETS.