This just in: OSHA and employee testing

For many employers, employee vaccination or testing to be required by Jan. 4.
a close up of a bottle
Keeping records of employees' vaccination status is part of the new ETS (emergency temporary standard).

The U.S. Department of Labor's Occupational Safety and Health Administration announced Thursday a new emergency temporary standard that it says is designed to protect more than 84 million workers from the spread of the coronavirus on the job. 

Under this standard, covered employers 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.

The emergency temporary standard — read it here — 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.

OSHA pointed to grim stats to support its action: Since 2020, the coronavirus has led to the deaths of 750,000 people in the U.S., and the infection of millions more, making it the deadliest pandemic in the nation's history. OSHA added that many of the people killed and infected by this virus were workers whose primary exposures occurred at their jobs. 

“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.”

A recent NLBMDA poll found a vast majority of respondents believe vaccination mandates would have a negative impact on their business.

The National Lumber and Building Material Dealer Association says it is continuing to review the almost 500-page ETS and will be providing members with more detailed information shortly.

In a news alert to members, the NLMBDA also pointed to additional considerations:

  • The ETS does not require employers to pay for testing but 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.
  • OSHA and the White House took NLBMDA’s recommendation to omit remote workers and those working outdoors from the ETS requirements. As a result, the ETS does not apply to employees who work remotely from home or exclusively outdoors.
  • The rule will be effective immediately upon its publication in the Federal Register tomorrow morning. Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication.   

The NLBMDA had previously released survey results that showed 83.2% of respondents with 100 employees or more said they believed that a vaccine mandate would result in a negative impact to their business, as well as a negative impact on their ability to retain employees. 

Results of a September survey of NLBMDA members with 100 employees or more.

According to OSHA's Thursday announcement, the ETS 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. 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.”

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