On November 4, 2021, the United States Department of Labor’s Occupational Safety and Health Administration released an unpublished version of the language to be submitted for the Emergency Temporary Standard (“ETS”) concerning vaccination and testing. It also created a webpage concerning the standard with an extensive accompanying FAQ. The standard was published on Friday, November 5, 2021 and all requirements apart from weekly testing compliance will be required by 30 days after publication. Employees have 60 days following the publication to be vaccinated to avoid the weekly testing requirement under the ETS.
The ETS applies to all employers with a total of 100 or more employees. The ETS requires that employers create a policy that will require mandatory vaccination of all employees with defined exceptions. OSHA has provided a policy example in its ETS webpage. The employer must also verify the vaccination status of employees and mandate periodic testing for unvaccinated employees and maintain a record of these test results.
The exclusion periods for workers with positive test results are fixed to the CDC’s exclusion period, a negative test result from specified types of tests, or a recommendation from a licensed healthcare provider to return to work. However, unlike Cal/OSHA’s present standard, this standard does not require pay for exclusion.
Certain states have agreed to accept responsibility for making their own standards for workplace health and safety. These states can be viewed here. These states have a limited time after the Federal OSHA standard becomes effective to make their own standard. This standard must be at least as protective as the Federal standard. What California employers should understand is that Cal/OSHA’s standard will almost certainly be stricter than the Federal standard. Cal/OSHA’s ETS may be stricter in a number of ways: for example, the number of employees which bring an employer into the scope of the standard, pay for employee exclusion, record retention requirements, or the written policy requirements.
For questions concerning your business’ compliance with COVID-19 vaccination, testing, and general requirements, please contact the attorneys at Sagaser, Watkins & Wieland, P.C.