On November 4, 2021, the Occupational Safety and Health Administration (OSHA) published the interim final rule on emergency temporary standard.  The ETS requires businesses with 100 or more employees to mandate their employees get vaccinated against the coronavirus or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.
While the overall document is quite long at 490 pages, the ETS itself is relatively short and begins on page 473 of the publication. Some of the highlights, include:
  • An employer is covered by the ETS if they have 100 or more employees “at any time.”
  • The 100-employee threshold is based on total employee count and not the number of employees at individual locations.
  • All employees are included, there is no “full time equivalency” standard.
  • Covered employers must establish a written policy that mandates vaccination for all employees or offers a choice between vaccination and weekly testing coupled with mandatory face coverings while at work.
  • An employer is required to provide paid time off for employees to receive the vaccine and recover from any side effects.
  • Vaccinated employees must provide proof of vaccination. The ETS does not allow for self-attestation.
  • Employers must apply ADA and Title VII accommodations where applicable.
  • If an employer allows employees to opt for weekly testing in lieu of vaccination, the employer is not obligated to pay for testing or for the time it takes for an employee to complete weekly testing.
  • Where applicable, employees who fail to complete weekly testing must be excluded from the workplace until a test result is provided.
The testing requirements under the ETS must begin on January 4, 2022, while the other requirements of the ETS, such as mask rules and the written policy, must be in place by December 5, 2021.
The White house published its own Fact Sheet reiterating the OSHA ETS, new vaccination requirements for health care workers, and setting the deadline for federal contractors to comply by January 4, 2022.

About the Authors. This update was prepared by HR Pros, LLC, a national HR consulting firm that helps companies reduce operational and employment related risks. Contact Christopher Brown (cbrown@hrpros.biz), Philip Roach (philipcr@hrpros.biz) or Josh Blinkey (jblinkey@hrpros.biz) for more information.
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