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OSHA ETS SUMMARY

On November 5, 2021, OSHA published the new version of its Emergency Temporary Standard. Key highlights are summarized below.

Important Dates:

EFFECTIVE IMMEDIATELY – Reasonable and good faith efforts should be made to come into compliance with the ETS; Develop written policies for vaccination and testing protocols.

01/10/2022 – Written policy in place; required masking of unvaccinated personnel, PTO to get vaccinated

02/09/2022 – Testing Rule Compliance Date (for businesses who will accept cadenced testing in place of vaccination)

 

ETS DOES Apply To:

Employers with more than 100 employees

 

ETS DOES NOT Apply To/Exceptions:

Employees who work alone in an office/facility OR alone in the field

Employees who work from home

Employees who work entirely outdoors

Employees who cannot be vaccinated due to medical conditions

Employees who are protected by civil rights laws regarding disability or religious beliefs.

 

General Requirements and Exceptions:

The ETS offers 2 choices –

  1. All employees are required to be vaccinated OR
  2. Establish a vaccination AND testing policy to include the following:
    1. Get vaccinated OR
    2. Wear a mask at work & get tested on preset company cadence (at minimum, once every 7 days)
    3. If you do not report to an office/facility regularly but need to visit for any reason – you must be tested 7 days prior to reporting to said workplace.

Information to be kept on record by Employer:

  1. Determination and proof of vaccination status of each employee
  • Types of proof:
    • Shot/immunization record from doctor, pharmacy or public health system
    • Copy of vaccination card
    • Copy of medical records documenting vaccination
    • Copy of any other official documentation so long as it contains:
      • Vaccine Type
      • Date of Vaccination
      • Name of Clinic and person giving the vaccination
  • **If the employee claims to be vaccinated, but cannot find or provide any of the items above, they may provide a signed and dated statement that MUST include the following:
    • attestation of vaccination status (full or partial)
    • attestation of lost proof or otherwise unable to provide proof
    • include the following language “I certify that this statement is true and accurate. I              understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”

Employers are required to:

  1. Provide employee time off to get vaccinated and recover from side-effects.
  2. Maintain a record of each vaccination in the confidential medical file for the duration of the ETS.
  3. Maintain a list of each employee’s vaccination status, protected in the same manner as employee confidential medical files for the duration of the ETS.
  4. Maintain testing records and testing results for all employees to be kept in the confidential medical file for the duration of the ETS.
  5. Require notification form employees who test positive or diagnosed and remove them from the workplace.
  6. Inform each employee, in a language they can understand, the following:
    1. The requirements of the ETS,
    2. www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html
    3. The requirements of 29 CFR 1904.35(b)(1)(iv): employers cannot terminate, discriminate against, or otherwise retaliate against an employee for reporting work related injuries or illness, or exercising rights under the OSH Act.
    4. The prohibitions of 18 USC 1001, and Section 7(g) of the OSH Act providing for criminal penalties associated with knowingly supplying false statements or documentation.
  7. Remain prepared to provide records to OSHA, if requested, within 1 business day of the request or face further action including fines.