The US Department of Labor’s Occupational Safety and Health Administration last week published its long-anticipated Emergency Temporary Standard, or ETS, requiring private employers with 100 or more employees to ensure their employees are vaccinated against Covid-19 or tested for it. The requirement was published Nov. 5 in the Federal Register.
The mandate faced an immediate appeal by a coalition that included attorneys general in 11 states and five staffing firms. The 5th Circuit on Saturday issued a temporary stay on the mandate. In its filing with the court Monday, the Department of Justice urged the court to allow the mandate to remain in effect as the appeals process continues, saying “a stay would likely cost dozens or even hundreds of lives per day,” and noted “OSHA can establish … permanent standards that are that are ‘reasonably necessary or appropriate’ to address a ‘significant risk’ of harm in the workplace.”
“The mandate requires employers to collect their employees’ vaccination status by Dec. 5 and from that date to require unvaccinated employees to wear masks. Employers should continue with these preliminary steps by conducting surveys and drafting the necessary policies and procedures as this will take time and these elements of the mandate are not new measures,” says Fiona Coombe, SIA’s director of legal and regulatory research. “However, until the appeals process has been concluded and it is known whether the Emergency Temporary Standard will prevail in its current form or at all, employers should be aware of the many state and local mandates that currently exist around employee health screenings, vaccine mandates, testing and mask wearing.” Law firm Littler Mendelson provides a chart with basic information on vaccination mandates issued at the federal and statewide levels.
Should the mandate be upheld, employers with 100 or more employees would have to 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 contingent workforce. Independent contractors would not count toward the total number of employees, according to an OSHA FAQ site. However, temporary and seasonal workers employed directly by the employer (i.e., not obtained from a temporary staffing agency) are counted in determining if the employer meets the 100-employee threshold, provided they are employed at any point while the ETS is in effect.
“In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS,” OSHA stated. “The host employer, however, would still be covered by this ETS if it has 100 or more employees in addition to the employees of the staffing agency.”
It continues: “On the other hand, if a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. A host employer may, however, require the staffing agency to ensure that temporary employees comply with its policy (either be fully vaccinated or tested weekly and wear face coverings).”
The ETS would cover two-thirds of the nation’s private-sector workforce. In the 26 states and two territories with OSHA state plans, the ETS would also cover public-sector workers employed by state and local governments, including educators and school staff.
The ETS would also require employers to provide paid time off for workers to get vaccinated and to allow for paid leave to recover from any side effects.
Employer responsibilities under the ETS also include:
- 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 seven 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.