News: OSHA released an Emergency Temporary Standard (ETS) on protecting employees from the Covid-19 virus.

What is an ETS?

ETS stands for Emergency Temporary Standard and takes effect rather quickly. OSHA attempts to make clear what organizations are affected by an ETS. Additionally, an ETS generally applies to state OSHA organizations as well.

Why was it issued?

OSHA has the authority to issue emergency temporary standards only if it can show both of the following factors:

  • Employees are exposed to grave danger from the hazard.
  • The ETS is necessary to protect employees from that danger.

Since 2020, the coronavirus is the deadliest pandemic in U.S. history. Many of the people killed and infected by the virus were workers whose primary exposures occurred at their jobs. OSHA believes it will save thousands of lives and prevent more than 250,000 hospitalizations due to workplace exposure with this ETS.

What companies does this affect?

The ETS covers employers with 100 or more employees – firm or company-wide – and provides options for compliance.

What are the fines?

OSHA can issue a citation for noncompliance for $13,653 per violation if classified as serious or other than serious, and up to $136,532 if willful or repeated.

What are the details?

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.

Of particular note:

  • All unvaccinated workers must begin wearing masks by Dec. 5 and provide a negative COVID-19 test on a weekly basis beginning Jan. 4.
  • Employers must pay employees for the time it takes to get vaccinated and recover from any side effects that prevent them from working.
  • Companies are not required to pay for or provide the tests unless they are otherwise required to by state or local laws or in labor union contracts.

Can state OSHA regulators override this?

The short answer is no — not without the courts.

When Federal OSHA issues an ETS, State Plans must either amend their standards to be identical or “at least as effective as” the new standard, OR show that an existing State Plan standard covering this area is “at least as effective” as the new Federal standard.

Adoption of this ETS, by State Plans (or an ETS that is at least as effective), must be completed within 30 days and must remain in effect for the duration of the Federal ETS.

However, the ETS was immediately challenged in court and the 5th court issued a stay against the enforcement. In fact, four separate groups of 26 states total have petitioned the Fifth, Sixth, Eighth, and Eleventh, Circuits to review the legality of the OSHA ETS. (It seems there are many challenges between Federal and State OSHA enforcement.)

Will the court challenge hold up?

It’s a 50/50 chance. When OSHA has issued an ETS in the past, and it has been challenged in court, 4 out of 9 times the ETS was struck down, and 1 out of 9 times it was partially struck down.

According to the Congressional Research Service, “[I]n the nine times OSHA has issued an ETS [prior to its COVID-19 health care ETS], the courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case.”

– Congressional Research Service

But this isn’t the time to wait for the courts. It’s estimated that it will take weeks for employers to out in place processes and workflows that comply with the ETS. Our suggestion is for companies to prepare how they will comply as litigation moves through the courts.

For more questions about this ETS, OSHA has a page dedicated to FAQs.

If you need help with any COVID safety policies, training, or inspections, ask about our COVID ETS bundle.

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