Safety Alert: OSHA Update- Covid-19 Vaccination and Testing
December 29, 2021
OSHA Emergency Temporary Standard (ETS) on Covid-19 Vaccination and Testing for Employers with 100 or more Employees
Any company with at least 100 employees that fails to comply with the ETS for Covid-19 Vaccination and Testing may be subject to fines up to $13,653 per serious violation. Keep in mind that OSHA fine increase each year in January by the rate of inflation. We can expect fines for serious violations to exceed $14,000 in 2022.
If a company acts in “good faith” to implement the requirements of the ETS, OSHA will give companies until February 9th, 2022, to comply; however, there are items you need to have in place by January 10th, 2022.
By January 10th, 2022, you will need to have the following items in place:
- You will need to have your written ETS-compliant policy in place. Your organization may already have a Covid-19 Safety Policy in place, but this policy must be compliant with the OSHA ETS. For an in-depth look at the OSHA ETS visit https://www.osha.gov/coronavirus/ets2.
- You must collect employee vaccination data by this date. You will need to confirm which employees have been vaccinated. You must see documentation of the vaccination. It is not a violation of rights under HIPAA to request to see a vaccination card.
- You will need to require face coverings for unvaccinated employees. The ETS is very specific on the face coverings. The definition in the ETS states that face coverings means a covering that completely covers the mouth and nose; is made of two or more layers of a breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source); is secured to the head with ties, ear loops, or elastic bands that go behind the head. If gaiters are worn, they should have two layers of fabric or be folded to make two layers; fits snugly over the nose, mouth, and chin with no large gaps on the outside of the face; and is a solid piece of material without slits, exhalation valves, punctures, or other openings. This definition includes clear face coverings or cloth face coverings that, despite the non-cloth material allowing light to pass through, otherwise meet this definition and which may be used to facilitate communication with people who are deaf or hard-of-hearing or others who need to see a speaker’s mouth or facial expressions to understand speech or sign language respectively. Click here to learn more.
Other items to note in the ETS include:
- The option is available to mandate vaccinations for all employees. Because it takes three to four weeks between doses and two weeks after the second dose to be considered fully vaccinated, your employees will need to receive the first does of the vaccine as soon as possible.
- The employer is required to provide a reasonable amount of time to each employee for each of their primary vaccine doses; and provide up to four hours paid time, including travel time, at the employee’s regular rate of pay for this purpose; and provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose to each employee for each does.
- It does not appear that OSHA will issue citations for employers working toward compliance until after February 10th, 2022, but that time will come quickly!
- Also, keep in mind that even with mandatory vaccination rules, people can have legitimate health and religious exemptions. Make sure that you include this in your written policy.
- Employees who chose to remain unvaccinated where vaccines are not mandatory or where mandatory but fall under a bona-fide medical or religious exemption must be tested for COVID-19 at least once every seven days and results provided to the employer upon return to the facility.
- Employees can use self-testing kits but may not be allowed to self-certify. They will need to administer them at their place of employment with a witness to certify whether the test is positive or negative (if an employee test positive, they must leave the facility immediately).
