The ETS requires private employers to either mandate COVID-19 vaccinations for their employees or have unvaccinated employees show a negative test for the virus at least weekly and wear masks. Covered employers must provide employees up to four hours of paid time to receive each vaccination dose (if during working hours) and reasonable time and paid sick leave to recover from side effects of the vaccine. Additionally, employers must provide each employee with information about the ETS (see Workers’ Rights fact sheet issued by OSHA available here). This information includes the following: workplace policies and procedures to implement the ETS; COVID-19 vaccine information; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
Who Does the ETS Cover?
The ETS covers private employers with 100 or more employees. The 100-employee count is based on the number employees that are employed company-wide, not at each individual work location. Therefore, for a single corporate entity with multiple locations, employers must count their total employees at all locations. Employers must include part-time, temporary, and seasonal employees in the employee count. Independent contractors do not count towards the total number of employees.Importantly, once an employer falls within the scope of the ETS, they remain within its scope – even if their total number of employees drops below 100. The determination of whether an employer falls within the scope of the ETS is based on the number of employees as of November 5, 2021. If an employer has 100 or more employees on November 5 and later reduces their workforce below 100, the ETS continues to apply to the employer for the remainder of the time the ETS remains in effect. Conversely, if an employer who has less than 100 employees on November 5 (and therefore the ETS would not initially apply) later hires more employees that exceed 100, the employer must comply with the ETS at that time.
The ETS does not apply to employees covered by previous mandates such as federal contractors and healthcare workers. Additionally, if an employer is covered by the ETS, it does not mean all of its employees must follow the ETS requirements. The ETS does not apply to employees who do not report to a workplace where other individuals are present, work from home, or work exclusively outdoors (so long as they do not routinely occupy vehicles with other employees).
For employers that do not comply with the ETS by its effective date, OSHA can impose a maximum penalty of $13,653 per citation. For willful violations, OSHA can increase the fine up to 10 times that amount.
Effective Date
By December 5, 2021, employers must comply with all requirements of the ETS (except the testing requirement for employees who are not fully vaccinated). By January 4, 2022, employers must comply with all requirements of the ETS, including the testing requirement for employees who are not fully vaccinated.Emergency temporary standards generally remain in effect for six months at which time a determination is made as to whether the standard will become permanent. Due to the nature of COVID-19, OSHA anticipates that the ETS will remain effective for six months but states that it will update the ETS if it determines that the grave danger from the virus no longer exists or new information requires a change in the measures necessary to address the virus.
Additional Requirements
There are a number of additional requirements under the ETS. Most significantly, employers also must require their employees to provide proof of vaccination and maintain a roster with this information. Employers must keep this information strictly confidential and treat it as it would other confidential medical information. Employers also must require employees to provide prompt notice of when they test positive or are diagnosed with COVID-19.Employers should contact counsel for the full list of requirements and any questions they may have (including, but not limited to, disability and religious accommodations). For an earlier article on the ETS, please see Z&R’s blog post here.
*Scott Coghlan chairs the firm’s Workers’ Compensation Group and regularly advises clients on all workers’ compensation and OSHA related matters. If you have a question about the Ohio BWC’s OSHA’s response to COVID-19 or any other workers’ compensation or OSHA related questions, please contact Scott at sc@zrlaw.com or (216) 696-4441.