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OSHA ETS Mandates Vaccinations or Weekly Testing

President Biden announced yesterday that the Labor Department’s Occupational Safety and Health Administration (OSHA) plans to issue an emergency temporary standard (ETS) which will have a big impact on many private-sector employers.  This ETS will require employers with 100 or more employees to:

  • ensure every employee is fully vaccinated against COVID-19; or
  • require any employee who remains unvaccinated to produce a negative test result on a weekly basis before coming to work.

The proposed ETS plans to incentivize employees to become vaccinated by requiring employers to provide employees with paid time off to get vaccinated and recover from any side effects. Currently, there is no mention of compensation for employees who opt for weekly COVID-19 testing and who may be unable to work and unpaid while awaiting results.

The proposed ETS is no question motivation for employers to encourage their employees to become vaccinated.  This will likely push many employers, who otherwise may be on the fence, to require their employees get vaccinated in an attempt to avoid the uncertainty of employee weekly testing, the related questions of compensation, and the unpredictability of employees who may be awaiting test results.

Reportedly, any employer who fails to meet the requirements of the proposed ETS may be subject to penalties of up to $14,000 per violation.

President also signed an executive order yesterday, requiring all government workers in the executive branch be vaccinated, with no option of being regularly tested. A separate executive order was also signed requiring the same obligation of all federal contractors, irrespective of whether their employees are currently employed on federal worksites. These executive orders come on the heels of July’s announcement regarding stricter vaccination, masking and social distancing requirements for the public sectors federal employees and on-site contractors.

Although not many details have been shared by the Labor Department or the White House, it is rather apparent that OSHA plans to expedite the issuance of this ETS without compiling the usual public comment from stakeholders which is generally required during the rule making process.

Now is the time to start planning. Ensure your company COVID related policies are in place and managers are trained on related employment law topics such as the ADA, identifying the need for accommodations and initiating the interactive process.  Executive Legal Services is here to assist with policy and procedure development, implementation and management training.

Jacqueline C. Hawkins

Sentinel Risk Advisors, LLC has partnered with Executive Legal Services to establish the Sentinel Risk Advisors Prepaid Legal Services Plan encompassing Employment Law, Human Resources and Contractual Risk Transfer. This offering is designed to provide added depth and resource for your internal infrastructure.  Please contact your Sentinel Risk Advisors Client Executive or Account Advisor to incorporate this unique and exclusive offering into your comprehensive risk management plan.