On September 9, 2021, President Biden announced a series of major changes to US regulations and policy regarding COVID-19 vaccinations. On November 5, 2021 the federal Occupational Safety and Health Administration (“OSHA”) also issued an Emergency Temporary Standard (“ETS”) that requires all companies with 100 or more employees to establish and implement a written policy by December 6, 2021 requiring all employees be fully vaccinated against COVID-19 or submit to weekly COVID-19 testing starting on January 4, 2022. OSHA’s Emergency Temporary Standard answers many questions that have been raised after President Biden’s COVID-19 Action Plan. These announcements have created a lot of new questions regarding what employers must do in order to comply with federal and state requirements to keep their worksites running.
There are approximately 80 million American workers employed at companies with 100+ employees and approximately 20 million workers are governed by the new executive orders on healthcare and federal employees as well as contractors. That means that the majority of the American workforce will be subject to one of these rules.
With the new ETS being issued it is important to prepare now. The healthcare ETS that was passed in June and went into effect just 15 days after publication, leaving little time to start preparing for the regulation. Additionally, OSHA has rarely issued Emergency Temporary Standards. In fact, OSHA only released its first COVID pandemic-related ETS in June of 2021. At that time, ETS addressed safety standards and new protection measures for healthcare workers and indications were that a general ETS, particularly one that is as sweeping as what President Biden has since announced, would not be forthcoming. However, from July to September, the United States saw a surge in both COVID-19 cases and hospitalizations as the administration’s goals for vaccination rates have remained unmet.
WHAT ARE THE IMPORTANT CHANGES TO US REGULATIONS AND POLICY IN REGARD COVID-19 VACCINATIONS?
- All federal employees working in executive agencies are, by executive order, required to be vaccinated.
- All federal contractors are required to be vaccinated.
- All healthcare workers who work for entities receiving payments from Medicare or Medicaid are, by executive order, required to be vaccinated.
- Through an upcoming Occupational Health and Safety Administration (OSHA) Emergency Temporary Standard (ETS), all employers with 100 or more employees must require their employees to be vaccinated or, for those who do not get vaccinated, undergo weekly COVID-19 testing.
WHO DOES OSHA’S EMERGENCY TEMPORARY STANDARD APPLY TO?
The ETS will apply to any employer with 100 or more employees. That is a total employee count, not a “per site” count, according to the OSHA Senior Advisor, Anne Rosenthal. Remote employees will most likely count toward the 100 or more employee headcount but will likely not be required to be vaccinated until they are preparing to return to the worksite.
Additionally, a company will need to consider whether your organization is regulated by federal or state OSHA, or a combination of both. If they are regulated by a state OSHA, that state-level agency is responsible to pass a rule that is at least as effective in providing safe and healthy employment and places of employment as the federal OSHA ETS. Their rules do not have to be identical so, if a state so chooses, some employers might be governed by even more strict rules. Because of this requirement, the businesses regulated by a state OSHA should prepare as if the federal rule will apply to them because their state will be issuing a rule that either mimics or imposes even greater restrictions. Even California OSHA, which until now has had the most strict COVID-19 rules in place, will have to modify its own ETS in order to comply with the new federal standard. States with their own OSHA plans will be required to adopt an ETS within 30 days of publication of OSHA’s ETS.
Not sure if federal or state OSHA applies to you? Check out SixFifty’s graphic to help assist you in making that determination. Keep in mind that organizations with employees in multiple states may be governed by federal rules in some states and state rules in others due to employees being governed by the rules of the state where they are working.
OSHA’S Emergency Temporary Standard Applicability
WHAT IS AN EMERGENCY TEMPORARY STANDARD?
An Emergency Temporary Standard (ETS) issued by the Department of Labor is an emergency temporary standard which requires all companies with 100 or more employees to establish and implement a written policy by December 5, 2021 that requires all employees to be fully vaccinated against COVID-19 or submit to weekly COVID-19 testing starting January 4, 2022. The Secretary of Labor has the authority to issue an ETS when employees are exposed to grave danger from substances or agents determined to be toxic, physically harmful or from new hazards, and emergency standards are necessary to protect employees from such danger. The current situation meets those standards according to the Biden administration, but that may be one of the issues that receives pushback from states that have indicated plans to oppose the upcoming rule.
WHAT WILL BE IN OSHA’S EMERGENCY TEMPORARY STANDARD?
The ETS will contain clarifications to help employers know what processes they will have to follow in order to be compliant with the plan that President Biden outlined. In his address, President Biden stated that the Department of Labor will put in place an emergency rule requiring “all employers with 100 or more employees to ensure their workforces are fully vaccinated or show a negative test at least once a week.” While the President did not give any additional information regarding the contours of the rule, OSHA, the agency within the Department of Labor that is responsible for the ETS, has given some additional information about what we can expect. Employers will be required to give paid time off to employees to receive and/or are recovering from the vaccine. However, in a press briefing given by Labor Department officials September 10, 2021, they stated that employers will be able to require employees to use their existing paid time off.
Additionally, according to OSHA Acting Administrator James Frederick, employers will have the option to impose stricter rules than those required by the new ETS. This has always been the case when OSHA sets a floor for what employers are required to do in order to protect their workers and create a safe work environment free from known hazards. Employers also have the option to adopt standards that are above what is required to be compliant.
SixFifty helps organizations navigate the new way we work. We’re here to assist you and your company in complying with new federal mandates and emergency temporary standards. We regularly update our toolset to help you and your business stay in compliance as laws continually change.