Court Lifts Stay on Federal OSHA Vaccination and Testing Emergency Temporary Standard

The U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard (ETS). OSHA will once again implement the ETS, which applies to all work places who employ, across all locations, 100 or more employees.  Additionally, the federal ETS acts as a proposal for a permanent standard.

According to a statement by OSHA, “To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”

CalOSHA recently amended and readopted the state’s COVID ETS. The amended ETS goes into effect on January 14, 2022 and will remain in effect until April 14, 2022.   The California ETS applies to ALL employers.  Click here to read a summary of the key changes.

CalOSHA now has 30 days to amend its standard to conform to the Federal ETS for employers with 100 or more employees.

About the Federal Vaccination and Testing Emergency Standard

Click here for information resources provided by Federal OSHA including answers to Frequently Asked Questions.

Important elements of the ETS include, but are not limited to:

  • Employer vaccine policy (Mandatory) – The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.
  • Vaccination record keeping – The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
    • Availability of records –  The ETS requires employers to make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
  • Information provided to employees – Employers must provide employees with the CDC document“Key Things to Know About COVID-19 Vaccines”; information about protections against retaliation and discrimination; and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • How to “count” employees
    • 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.
    • The count should be done at the employer level (firm- or corporate-wide), not the individual location level.  Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted.
    • Exclusively outdoor employees – If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered. However, the standard’s protections would only apply to the 10 employees working in indoor settings around other individuals (other than telework in their own homes), not to those employees working exclusively outdoors.

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