On Sept. 9, President Biden announced further steps in a comprehensive plan to address the ongoing COVID-19 pandemic. This includes a requirement that all employers with 100 or more employees ensure their employees either get vaccinated or undergo weekly testing. To implement this employer requirement, the Occupational Safety and Health Administration will issue an Emergency Temporary Standard, with some observers estimating the ETS will be issued in two to eight weeks.
When the ETS is published in the Federal Register, it will become take effect immediately in states where OSHA has direct jurisdiction. The 22 states with state OSHA plans will have 30 days to issue their own regulation with rules that are at least as effective as the federal standard. The ETS will be open for public comment after its publication, and comments will help shape a final rule that will replace the ETS six months after its issuance.
On Sept. 10, NRCA participated in briefings with officials from the Department of Labor, and although many specific aspects of how the ETS will work still are not determined, DOL officials confirmed the following:
- OSHA and DOL will work to ensure the ETS is consistent with the vaccination mandates imposed on federal contractors.
- The ETS testing/vaccination requirement will not extend to remote employees who are physically isolated from co-workers.
- Employers will need to provide employees with paid time off or allow employees to use existing PTO to obtain vaccinations and recover from vaccination side effects.
- The 100-employee threshold for coverage applies to the entire company, not just a single worksite.
- The ETS will not supersede any existing Department of Transportation rules, and the jurisdiction of transportation systems will not change.
Questions DOL officials have not yet answered but indicated would be addressed in the ETS include:
- Who pays for testing?
- What are the procedures for how employers will verify vaccinations and tests?
- What level of vaccination is required under the ETS (one shot, two shots, booster) and what are the associated waiting periods?
- What are the procedures for handling employees who refuse to vaccinate or test?
NRCA will continue to closely monitor the development of the OSHA ETS to implement the employer vaccine requirement for companies with 100 or more employees and will keep members fully informed regarding the situation.
