Majority of Private Sector Workforce in U.S. Impacted by OSHA COVID-19 Vaccination and Testing Emergency Standard

Occupational Safety and Health Administrationannounces an emergency temporary standard to protect more than 84 million workers from the spread of coronavirus.
84 million workers covered under an emergency temporary standard aimed at protecting workers from coronavirus.

The waiting and speculation is over: The U.S. Department of Labor’s Occupational Safety and Health Administration today announced a new emergency temporary standard to protect more than 84 million workers from the spread of the coronavirus on the job. It is estimated two-thirds of workers in the private sector are included in this mandate.

Under this standard, covered employers—which includes any employer with 100 or more employees total—must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

Since 2020, the coronavirus has led to the deaths of 750,000 people in the United States, and the infection of millions more, making it the deadliest pandemic in the nation’s history. Many of the people killed and infected by this virus were workers whose primary exposures occurred as a result of their jobs. OSHA estimates that this rule will save thousands of lives and prevent more than 250,000 hospitalizations due to workplace exposure to COVID-19 over the course of the ETS.

“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” said U.S. Labor Secretary Marty Walsh. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19. Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.”

The emergency temporary standard covers employers with 100 or more employees—firm or company-wide—and provides options for compliance. The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects. The ETS also requires employers to do the following:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The emergency temporary standard does not require employers to pay for testing, which an be expensive. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements or other collectively negotiated agreements. Employers are also not required to pay for face coverings.

“While vaccination remains the most effective and efficient defense against COVID-19, this emergency temporary standard will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus,” said Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick. “As part of OSHA’s mission to protect the safety and health of workers, this rule will provide a roadmap to help businesses keep their workers safe.”

OSHA is offering robust compliance assistance to help businesses implement the standard, including a webinarfrequently asked questions and other compliance materials.

Majority of Private Workforce Covered by Standard

The ETS will cover two-thirds of the nation’s private-sector workforce. In the 26 states and two territories with OSHA State Plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff.

With help wanted signs out at almost every U.S. business, what could this ETA mean for employers? Travis Vance, a partner with national labor and workplace law firm FisherPhillips, noted, “The biggest impact is that employers must remove employees from the workplace who are not vaccinated or tested weekly beginning January 4, 2022. This could have a significant effect on staffing concerns in an already lean labor market.”

Leading companies, including major airlines, manufacturers and retailers, have taken similar actions in recent months – adopting vaccine requirements or regular testing as necessary measures to protect their workers and customers.

The Impact on EHS Professionals

“With the recent revision of OHSAs COVID-19 ETS covering significantly more manufacturing and service organizations, the safety and health professional’s role just got more complicated,” said Scott Gaddis, VP of EHS for Intelex. “In speaking with colleagues, many of us believe mandated vaccination and testing programs could affect morale and organization culture, and that’s a safety concern.”

Gaddis points out that the ETA doesn’t address the potential impact on behavioral safety, culture and employee morale. “Organizational leadership teams will need to plan with programming that applies to the specific requirements of the ETS, but also monitors for signs of substandard behaviors that may jeopardize worker safety,” he said. “With any change this big, it will be critical that safety value is active and that means increasing one-on-one time with affected employees, active listening and caring for their concerns and honesty.”

The American Society of Safety Professionals has weighed in. “We have long viewed government action as a cornerstone of the occupational safety and health profession,” said ASSP President Brad Giles, P.E., CSP, STS, FASSP, GIOSH. “Legislation and regulation affect every safety professional, so it is vital that our members and the public learn and understand the positions of our society.”

Regarding OSHA’s emergency temporary standard for COVID-19, ASSP in a statement said it believes a workplace risk assessment rather than an arbitrary employee count would best address the need for workers to be vaccinated or tested weekly before coming to work. ASSP supports risk assessments as the most effective way for employers to tackle safety and health issues. Regardless of workforce size, employers should implement controls to prevent the spread of COVID-19, including contractors with fewer than 100 workers that operate on multiemployer sites.

Throughout the pandemic, ASSP has supported public and private-sector initiatives aimed at stopping the spread of the deadly disease through trusted science and sound technologies. ASSP has published a free technical report, ASSP/ISO TR – 45005-2021, Occupational Health and Safety Management – Safe Working During the COVID-19 Pandemic – General Guidelines for Organizations, registered with the American National Standards Institute. The report details guidelines for organizations on managing risks arising from the pandemic to increase work-related safety, health and well-being. In addition, ASSP has provided free COVID-19 content on its website.

The ETS is effective immediately upon its publication in the Federal Register. Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication.
The ETS also serves as a proposal for normal rulemaking for a final standard. OSHA is seeking comment on all aspects of this ETS and whether the agency should adopt it as a final standard.

OSHA will continue to monitor the status of COVID-19 infections and deaths, as the number of vaccinated people in workplaces and the general public increases and the pandemic evolves. OSHA will update the ETS should the agency find a grave danger no longer exists for the covered workforce (or some portion thereof), or new information indicates a change in measures is needed.

Looking for guidance about providing a safe workplace for employees? Check out these related resources from Intelex:

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About Sandy Smith

Sandy Smith is the Global EHSQ Content Lead for Intelex Technologies. Formerly the Content Director for EHS Today, she has been writing about occupational safety and health and environmental issues since 1990. Her work as a journalist and editor has been recognized with national and international awards. She has been interviewed about occupational safety and health for national business publications, documentaries and television programs; has served as a panelist on roundtables; and has provided the keynote address for occupational safety and health conferences.

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