OSHA Issues Mandatory COVID-19 Vaccination Emergency Temporary Standard

The Occupational Safety and Health Administration (OSHA) has issued the much anticipated COVID-19 vaccine mandate emergency temporary standards (ETS) for all employers.

This ETS applies to all employers with a total of 100 or more employees at any time this ETS is in effect.

However, the requirements of this ETS do not apply to:

  • workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Contractor Guidance);
  • settings where any employee provides healthcare services or healthcare support services when subject to the requirements of 29 CFR 1910.502 (i.e., the Healthcare ETS).
  • employees of covered employers:(1) who do not report to a workplace where other individuals, such as coworkers or customers, are present; or (2) while working from home; or who work exclusively outdoors.

Based on this scope, employers in nearly every sector are expected to be covered by this ETS.

Under this standard, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

The ETS requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.

The ETS also requires employers to do the following:

  • 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.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
  • 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
  • Report COVID-19 Fatalities and In-Patient Hospitalizations to OSHA.

The emergency temporary standard does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings.

The ETS is effective upon publication in the Federal Register which is planned for 11/5/2021.

Additionally, Compliance dates are as follows:

(i) Employers must comply with all requirements of this section, except for requirements in paragraph (g) of this section, 30 days after publication in the Federal Register.

(ii) Employers must comply with the requirements of this section in paragraph (g) 60 days after publication in the Federal Register but employees who have completed the entire primary vaccination by that date do not have to be tested, even if they have not yet completed the 2-week waiting period.

Paragraph (g) sets out the COVID-19 testing requirements for employees who are not vaccinated.

OSHA is seeking comments on the ETS and requests information on specific areas outline under the comments section in the ETS. Comments are due 30 days after publication in the Federal Register.

The National Association for Home Care & Hospice will continue an analysis of the OSHA ETS and provide additional information as it becomes available.

NAHC Comment on Rules Issued by CMS & Dept of Labor

“We have long supported Covid-19 vaccination of home care staff as a public health responsibility, stated William A. Dombi, President of the National Association for Home Care & Hospice. “Patients served in home care are highly vulnerable to serious complications from Covid and vaccines are one crucial way of protecting them and others who can come in contact with home care staff.” he added.

“The rules issued today represent the difficult and complex outcome of efforts to address an extended pandemic that has taken many lives in this country, including those on the frontlines of caring for Covid infected patients in their homes. Home care providers have provided care to hundreds of thousands of patients with Covid and millions more throughout the pandemic with a keen focus on infection control, Dombi stated.

“With respect to the rules, we appreciate that DoL and CMS took thoughtful steps in setting compliance standards, deadlines, and exemptions. We look forward to ongoing clarifications and guidance. Still, we remain concerned that the rules divide home care providers into two categories, those subject to the mandate and those that are not because of size or relationship to Medicare and Medicaid. This may lead to staff separations and some access to care limitations. Nonetheless, the home care community remains committed to protecting its patients and staff.”