The Latest on OSHA COVID-19 Vaccination and Testing; Emergency Temporary Standard (ETS)

11/10/2021

The Occupational Safety and Health Administration (OSHA) published its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) in the Federal Register, requiring private employers with 100 or more employees, company-wide, to institute either a mandatory vaccination policy or a policy that gives employees a choice to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. Impacted employers are to comply with most provisions of the standard by December 6, 2021, with testing requirements effective January 4, 2022.

On November 6, the U.S. Court of Appeals for the Fifth Circuit issued an order temporarily staying the enforcement of the ETS pending further action by the court. This means that OSHA cannot take steps to compel compliance with the ETS, or enforce it, while the stay is in effect. The legal challenge in the Fifth Circuit is one of several lawsuits challenging the ETS in a variety of jurisdictions. These challenges will ultimately need to be resolved by further legal proceedings. However, until there is a final court ruling resolving these cases, employers should continue to prepare for the ETS. Employers must begin complying with many of the requirements by December 6. OSHA can impose significant penalties for noncompliance, which could impact employers that are unprepared to implement the ETS. Here are some steps you should consider taking to prepare for December 6:

  • Review employer requirements to comply with the ETS. Helpful summaries, sample policies and notice requirements can be found on the OSHA website.
  • Develop either a mandatory vaccination policy or a policy that gives employees a choice to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. Samples of both policies can be found on the OSHA website.
  • Develop required notices to your employees. The notice requirements can be found on the OSHA website. The ETS requires employers to maintain records of each employee’s vaccination status and test results for as long as the ETS is in effect.
  • Begin gathering and documenting proof of vaccine from employees.
  • For unvaccinated employees, begin developing your testing process, which must include proctored tests and associated tracking.

Taking these steps now will help you prepare for compliance with this ETS to mitigate costly penalties for non-compliance. We strongly suggest you also consult with your legal counsel about application of the ETS to your specific situation.

For more information on the ETS, including frequently asked questions, we’ve developed this vaccine resource page on paychex.com. We will continue to update this page with new information on the ETS as it becomes available. Additionally, our COVID-19 Help Center is regularly updated with the latest information on anything pandemic-related that may impact you or your employees.

Finally, in partnership with Jackson Lewis, P.C., Paychex will be hosting a webinar on the latest information on the OSHA ETS on Thursday, November 18, at 1:00 p.m. EST. Registration for that webinar is now open.

Submitted by Paychex Corporate