LIUNA General President
Terry O’Sullivan

Federal OSHA’s new COVID-19 vaccination and testing emergency temporary standard (ETS) was expected since President Biden’s executive orders instituting a vaccine mandate for federal government workers, contractors and healthcare workers. The new ETS applies to companies with 100 or more employees (about 84 million workers across the U.S.) and offers more flexibility than the federal mandate, which did not include testing as an alternative option to vaccination.

“Throughout the pandemic, workplace transmission has been a concern for both workers and employers, especially in sectors like healthcare and in factory settings like meatpacking,” says LIUNA General President Terry O’Sullivan. “Vaccination and testing have a major role to play in controlling the ongoing workplace hazard caused by COVID-19.”

OSHA estimates the temporary standard, which will expire in six months unless OSHA replaces it with a permanent rule, will prevent more than 250,000 hospitalizations and more than 6,500 deaths. That’s more than the total number of workers who died on the job in all of 2019.

Requirements of the ETS

• Develop and enforce a written policy requiring employees to either get fully vaccinated or undergo COVID-19 testing at least every seven days. If the testing option is used, employees who aren’t fully vaccinated must wear a face covering when indoors or in a vehicle with another person during work hours.
• Determine employees’ vaccination status, including proof of vaccination, and maintain a record of this information.
• If the testing option is used, employers must track weekly test results and have policies stating who is responsible for the cost of testing and any penalties for failing to test weekly.
• Require employees to provide prompt notice if they test positive for COVID-19 or receive a COVID-19 diagnosis. Regardless of vaccination status, these workers must be removed from the workplace until they meet return-to-work criteria based on CDC guidance or the decision of a licensed medical professional.
• Provide employees with up to four hours of paid time off to receive each vaccine dose and reasonable time and paid sick leave to recover from any side effects.
• Allow employees to voluntarily wear a face covering regardless of vaccination status, unless it creates a serious workplace hazard.
• Promptly report work-related COVID-19 fatalities and hospitalizations to OSHA.
• Provide employees with information on vaccine efficacy and safety, their rights against retaliation and discrimination and laws related to criminal penalties for supplying false statements or documents.

Employers have until December 5th to comply with most of the provisions of the ETS. However, employers have until January 4th to ensure workers are vaccinated or start weekly testing. This January timeline considers the time workers will need time to get two doses (in the case of Pfizer and Moderna) and then have 14 days elapse to be fully vaccinated.

Positives, Shortcomings and Controversy

Health and safety advocates were disappointed to see the ETS exempt employers with fewer than 100 workers, meaning roughly one third of the U.S. workforce won’t be covered.

Additionally, because the standard doesn’t mandate employers to pay for testing or provide face coverings, that cost is likely to be passed on to workers. While this will encourage workers to get vaccinated rather than get tested regularly, it’s unusual for OSHA to issue a standard that allows employers to shift the cost of doing business to their workforce. Normally it’s up to employers to pay for compliance with OSHA standards and up to workers to follow the standards and protocols set by the employer.

Lastly, the ETS focuses almost entirely on vaccination, ignoring measures like ventilation and physical distancing that are recommended by the CDC, federal OSHA itself and are part of OSHA’s ETS for the healthcare industry. These proven infection control measures would provide a layered approach to COVID-19 prevention that’s missing from this ETS.

Immediately after being issued, the ETS faced stiff legal pushback. It was first blocked by a federal appeals court, and then multiple states sued on the grounds that OSHA overstepped its authority in issuing the standard. Many of the lawsuits are coming from the same states that pushed back on indoor mask mandates during the height of the pandemic.

As the legal challenges play out, employers would be wise to act as if the ETS will go into effect on December 5th as planned, with January 4th the target date to have workers be vaccinated or begin testing. Employers that don’t follow this path may have less time to come into compliance if and when the ETS goes into effect.

Regardless of the legal proceedings, employers (including those with fewer than 100 workers) can also choose to implement such a policy on their own. As we covered in our November issue, vaccine mandates are legal, effective and typically result in one percent or less of workers ultimately refusing the vaccine and leaving the organization.

For more information about the vaccinating and testing ETS, including specific questions, see our article in this month’s issue, “Ten Answers to Common Questions on OSHA’s Vaccine ETS”.

[Travis Parsons and Nick Fox]