The U.S. Department of Labor's Occupational Safety and Health Administration today announced a new emergency temporary standard [ETS] to protect more than 84 million workers from the spread of the coronavirus on the job. The ETS shifts payment responsibility for testing to workers which will impact risk costs for employers and may conflict with some Workers’ Compensation laws and the efficient administration of benefits.
Basis of the Rule
The nation's unvaccinated workers face grave danger from workplace exposure to coronavirus, and immediate action is necessary to protect them.
Since 2020, the coronavirus has led to the deaths of 750,000 people in the U.S., and the infection of millions more, making it the deadliest pandemic in the nation's history. Many of the people killed and infected by this virus were workers whose primary exposures occurred at their jobs. OSHA estimates that this rule will save thousands of lives and prevent more than 250,000 hospitalizations due to workplace exposure to COVID-19 over the course of the ETS.
“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” said U.S. Labor Secretary Marty Walsh. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19. Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.”
Coverage and Feasibility
The emergency temporary standard covers employers with 100 or more employees – firm or company-wide – and provides options for compliance. The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
The ETS also requires employers to do the following:
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee's vaccination status.
- Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet the required criteria.
- Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
- Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
Cost of Testing
The emergency temporary standard does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings.
“While vaccination remains the most effective and efficient defense against COVID-19, this emergency temporary standard will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus,” said Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick. “As part of OSHA's mission to protect the safety and health of workers, this rule will provide a roadmap to help businesses keep their workers safe.”
Compliance Assistance
OSHA is offering robust compliance assistance to help businesses implement the standard, including a webinar, frequently asked questions, and other compliance materials.
The ETS will cover two-thirds of the nation's private-sector workforce. In the 26 states and two territories with OSHA State Plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff.
Leading companies, including major airlines, manufacturers, and retailers, have taken similar actions in recent months – adopting vaccine requirements or regular testing as necessary measures to protect their workers and customers.
Rule-Making Process
The ETS is effective immediately upon its publication in the Federal Register. Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication (January 4, 2022).
The ETS also serves as a proposal for normal rulemaking for a final standard. OSHA is seeking comment on all aspects of this ETS and whether the agency should adopt it as a final standard.
OSHA will continue to monitor the status of COVID-19 infections and deaths, as the number of vaccinated people in workplaces and the general public increases and the pandemic evolves. OSHA will update the ETS should the agency find a grave danger no longer exists for the covered workforce (or some portion thereof), or new information indicates a change in measures is needed.
Opposition
There is strong opposition to the proposed ETS, and its critics are mounting vigorous challenges in the courts.
Several states filed a Petition for Review in the US Court of Appeals for the Eleventh Circuit contesting the ETS, claiming it exceeds OSHA statutory authority and the Religious Freedom Restoration Act. A temporary restraining order was entered by the Court.
Also, a petition was filed against the proposed Rule in the Fifth Circuit Court of Appeals. On November 12, 2021, The Fifth Circuit, in.a 22 page ruling, upheld the Stay until full review holding that the "challenges are likely to succeed on the merits." Public Citizen filed an amicus brief supporting the proposed OSHA standard.
The Judicial Panel on Multidistrict Litigation consolidate6 the Multicircuit Petitions/Orders and reassigned them in a random lottery process to The Sixth Circuit Court of Appeals. The panel is dominated by Republican Presidential appointees. Multicircuit Petition Statute: 28 U.S.C. § 2112
The Proposed Rule-Federal Register
Recommended Citation: Gelman, Jon L., "OSHA issues emergency temporary standard to protect workers from coronavirus," Workers' Compensation Blog (Nov 4, 2021), https://workers-compensation.blogspot.com/2021/11/osha-issues-emergency-temporary.html
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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.
Blog: Workers ' Compensation
Twitter: jongelman
LinkedIn: JonGelman
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" West-Thomson-Reuters
Updated: Nov. 30, 2021
