The mandate was just issued as an Emergency Temporary Standard (ETS)
AGC Update on Mandatory Vaccines
Today the Federal Occupational Safety and Health Administration (OSHA) released its COVID-19 vaccine requirements for employers that have a total of at least 100 employees firm or corporate-wide at any time. The release of the Emergency Temporary Standard (ETS) comes approximately two months after President Joe Biden announced a sweeping set of COVID-19 vaccine mandates and requirements for both Federal employees and private employers.
Its important to note that while the Federal ETS technically goes into immediate effect, California is governed by its own regulatory board: the California Occupational Safety and Health Administration (Cal/OSHA) that must now formally adopt the Federal ETS. As a result, with the release of the Federal ETS, Cal/OSHA now has approximately 30 days to formally adopt the Federal ETS in its current released form or adopt more stringent vaccine standards in addition to the Federal ETS. Only upon formal adoption by the Cal/OSHA Board does the Federal ETS go into effect in California.
Who is covered?
• Employers that have a total of at least 100 employees firm or corporate-wide at any time.
Exclusions
• Federal OSHA ETS does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.
• The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.
Effective Dates
• The ETS is effective immediately upon publication in Federal Register. To comply, employers must ensure provisions are addressed in the workplace by the following dates:
o 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination dose(s)
o 60 days after publication: Testing for employees who have not received all doses required for a primary vaccination
Testing provisions for employees who are not vaccinated
• The ETS requires employers to ensure that each employee, who is not fully vaccinated, is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. In addition, nothing prohibits employers from voluntarily assuming the costs associated with testing.
Employer support for employee vaccination
• ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose
Streamlining Implementation and Setting One Compliance Deadline Across Different Vaccination Requirements: January 4, 2022
• The rules released today ensure employers know which requirements apply to which workplaces. Federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces subject to the newly-released COVID-19 Vaccination and Testing ETS. To make it easy for all employers to comply with the requirements, the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS. Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022. This will make it easier for employers to ensure their workforce is vaccinated, safe, and healthy, and ensure that federal contractors implement their requirements on the same timeline as other employers in their industries. And, the newly-released ETS will not be applied to workplaces subject to the federal contractor requirement or CMS rule, so employers will not have to track multiple vaccination requirements for the same employees.
This morning, Thursday, November 4, from 10-10:45 a.m. PDT (1-1:45 p.m. EDT), the Department of Labor (DOL) will hold a briefing with senior DOL, OSHA, and administration officials to provide an overview of the ETS, including guidance around implementation and answers to key questions.
Attendees are encouraged to review the fact sheet and information from OSHA ahead of the briefing and submit questions using the RSVP link below.
Time: Thursday, November 4 from 10-10:45 a.m. PDT (1-1:45 p.m. EDT)
RSVP: Register here.
As Cal/OSHA moves forward with incorporating these federal regulations into a Cal/OSHA-specific ETS regulation, we will keep you apprised of any updates, changes, and announcements. Furthermore, in the days to come, we will be releasing a full summary and analysis of the Federal vaccine ETS along with useful resource documents. Additionally, AGC-CA will be scheduling a webinar for members offering a more in-depth analysis of the Federal ETS and guidance on how to proceed with compliance in the upcoming weeks.
Lastly, AGC of California has been in frequent communication with AGC of America (AGC-A). AGC-A has engaged outside legal counsel in order to provide a legal memorandum that identifies the standards that OSHA must meet to justify using the Federal ETS process instead of the normal administrative procedures that are typically employed. Now that the Federal ETS on vaccinations has been released, AGC-A will be measuring it against the legal memorandum to determine whether a court challenge is warranted and evaluate the chances for success. Additionally, several Republican U.S. Senators have announced they will use the Congressional Review Act (CRA) to challenge Federal OSHA’s ETS; however, obtaining the necessary votes to “disapprove” the ETS seems unlikely as Democrats remain the majority in both the Senate and House of Representatives.
Any questions or concerns regarding Cal/OSHA and vaccine mandates across the state, please contact Brian Mello, Safety Manager, at (603) 770-9264 or mellob
@agc-ca.org.
Topic: OSHA COVID Mandate (Read 187 times)
