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OSHA Emergency Temporary Standard Update

8:00 AM

As of this posting , the Supreme Court has not yet issued a decision on the appeal to reinstitute a stay of the U.S. Department of Labor’s Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which applies to employers with 100 or more employees.

Effective Jan. 10, OSHA will issue citations for noncompliance with any requirements of the ETS, but will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

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Under the OSHA ETS, covered employers are required to do the following:

  • Establish vaccination and testing policies. Policy templates are available on the OSHA Vaccination and Testing ETS website.
  • Determine employees’ vaccination status and comply with OSHA’s ETS recordkeeping requirements.
  • Support vaccination by providing employees paid time off for the vaccine and for recovery from side effects.
  • Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
  • Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return-to-work criteria are met.
  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
  • Provide information to employees. The ETS requires covered employers to provide employees with the following in a language and at a literacy level the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document, Key Things to Know About COVID-19 Vaccines; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report work-related COVID-19 fatalities to OSHA within eight hours of learning about them, and work-related COVID-19 inpatient hospitalizations within 24 hours of the employer learning about the hospitalization.
  • Make certain records available for examination and copying to an employee (and to anyone having written, authorized consent of that employee) or an employee representative.
Covered employers should consult the OSHA standard for full details.

Refer to the following link for compliance dates: OSHA FAQ 

As a reminder, on Nov. 9, ABC and its Alabama chapter filed a petition for review with the U.S. Court of Appeals in the 11th Circuit against the OSHA ETS. In a press release, ABC said, “The OSHA ETS rule presents one of the greatest sources of risk and uncertainty to the construction industry because it is likely to exacerbate the skilled labor shortage currently facing the industry and many small businesses [...] ABC’s legal challenge pushes back against the Biden administration’s overreaching policy, which creates unnecessary tension between employers and employees and is likely to further disrupt America’s economic recovery.”

On Nov. 12, the U.S. Court of Appeals for the 5th Circuit granted a motion to stay the OSHA ETS. Thereafter, OSHA announced that it had suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

On Nov. 16, via lottery, the U.S. Court of Appeals for the 6th Circuit was chosen to hear challenges to the OSHA ETS, which included ABC’s petition for review filed on Nov. 9. DOL filed a motion to lift the stay.

On Dec. 17, the 6th Circuit Court of Appeals lifted the 5th Circuit’s stay of the OSHA ETS. ABC filed an emergency appeal with the Supreme Court on Dec. 20, one of several filed by other groups. The Supreme Court held oral argument on the appeal in an emergency session on Jan. 7.