What employers need to know about ETS COVID testing and vaccination

OSHA has released its Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing. While a federal court has issued a stay of these requirements in the midst of legal challenges, below is what is included in the regulations. All businesses with more than 100 employees – firm or company-wide – will be affected.

Under the ETS, affected employers must:

  • Adopt a policy in which all employees are “fully vaccinated” meaning two weeks after a one-shot vaccination (such as Johnson & Johnson), or two weeks after the second dose of two-shot vaccination (such as Pfizer or Moderna) by January 4, 2022.
  • Additionally, by December 5, 2021, employers must have policies in place to provide paid-time-off to employees to get vaccinated, to recover from any side effects, and to require non-vaccinated workers to be masked in the workplace (subject to limited exception).
  • As of January 4, 2022, employees who are not fully vaccinated but who enter the workplace will be required to be tested weekly for COVID-19 (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). The ETS lists a number of tests that are acceptable for this purpose including tests conducted by third-parties or tests taken by employees under employer supervision.
  • 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.
  • Employers will be required to maintain proof of vaccination and a roster of employees’ vaccination status, available for inspection upon request by OSHA, but they do not otherwise need to certify. These records must be maintained as long as the ETS is in effect but do not appear to be subject to the 30 years retention requirement.
  • Employers are not required 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.

The requirements of the rule do not apply to employees who do not report to a workplace where other co-workers or customers are present, who work exclusively outdoors, or while working at home.

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.

In anticipation of the ETS, several states have entered into a multi-state lawsuit challenging President Biden’s Executive Order mandating vaccines for federal workers. We will keep you informed if other complaints filed with the courts should affect the mandate for businesses.

Kristin Ward is a Manager with our Business and Tax Advisory Group. She can be reached at kward@antarescpas.com

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