OSHA's vaccine ETS: First impressions

Substantively moderate, but logistically? Ugh.

As I'm sure you all have seen, the Occupational Safety and Health Administration released yesterday its long-awaited Emergency Temporary Standard on COVID-19 vaccinations.

Although the text was released yesterday, the official date is today, when it was published in the Federal Register.

The ETS applies to all employers with 100 or more employees, with a few exceptions. (One big exception is that it will not apply to federal contractors covered by the Safer Federal Workplace Task Force guidelines, which Cara Crotty has been covering extensively.)

Our OSHA group will have a bulletin coming out sometime this morning with details about of the ETS, so I won't repeat what is in there. UPDATE: Here it is!

Based on the guidance that has been provided to certain federal contractors, I was expecting the OSHA rules to be much more draconian than they turned out to be.

First, employees who work remotely full-time (either from home, or from a location with no other employees or customers) are exempt from the ETS, as are employees who work outdoors all the time.

Second -- and this is up to the employer as to how lenient it wants to be -- the ETS allows the employer to let "non-exempt" employees go for the no-vaccination/weekly testing-face covering option even if they don't qualify for reasonable accommodation.

Third, the ETS recognizes the possibility of reasonable accommodation even with respect to the testing and face-covering requirements, in addition to vaccination requirements. (It pretty much defers to the Equal Employment Opportunity Commission guidance on reasonable accommodation.)

On the other hand, some of the communication and record keeping requirements -- as well as the testing protocol -- may be a real pain for employers. Employers who are covered by the ETS will be required to issue a policy, which doesn't sound so bad, until you read all the stuff that has to be in it. Unvaccinated employees will not be allowed to self-test and read their own results and report them to their employers -- instead, someone will have to monitor the test. That could be a telehealth provider or the employer.

And, of course, the employer will have to collect and maintain records of vaccinations and of the unvaccinated employees' weekly testing. (At least, that obligation will end when the ETS expires in six months, assuming it isn't replaced with a permanent regulation requiring the same thing.)

Here is a handy timeline from the U.S. Department of Labor on the employer obligations. (Thirty days after publication means 30 days from today, or December 5.)

And here is a summary of the ETS, in case you don't want to read the 154 pages of fine print in the full-blown version.

Employers who are covered by the ETS will need to get organized, and fast.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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