On Thursday, Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address COVID-19 in the workplace. Arizona and 10 other states responded immediately by filing a lawsuit asserting that the government’s mandate “suffers from a host of fatal flaws.” How the court battles are resolved remains to be seen. Arizona, among other states, also pointed out that it, not the federal government, has the exclusive responsibility for the development and enforcement of occupational safety and health standards within its states. (Read our FAQ and the ICA statement below).
Under OSHA’s ETS, employers will be required to comply with most provisions of the rule by Dec. 5, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firm- or company-wide count).
ETS Requirements
The ETS requires employers to:
- Develop, implement and enforce a mandatory COVID-19 vaccination policy; or
- Create a policy allowing employees to choose to get a vaccination or wear a face covering in the workplace and have weekly COVID-19 testing done.
Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination and keep a roster of each employee’s vaccinations status.
Weekly Testing Requirements
Employees who are not fully vaccinated must be tested weekly or within seven days before returning to work. 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, collective bargaining agreements or other collectively negotiated agreements.
Vaccination ETS FAQs
Are smaller employers subject to the ETS?
They may be, depending on how the courts rule. But, yes, OSHA is considering extending its rule to employers with fewer than 100 workers.
What about exemptions?
The ETS says employers may grant two kinds of exemptions to the vaccine mandate: medical, as provided under the Americans with Disabilities Act, and religious, as provided under Title VII of the Civil Rights Act. So far, no major religion has barred its members from taking the coronavirus vaccine.
Must employers give employees time off to get vaccinated or to recover from side effects?
Yes. Employers will need to provide up to four hours for workers to get vaccinated, as well as paid sick leave for them to recover from side effects.
Can employers fire workers who don’t comply?
The religious and medical exemptions will come into play here — but when it comes to people who do not have exemptions, employers are generally free to discipline people who don’t follow their rules.
How will the rule be enforced?
OSHA will investigate complaints brought to it by whistle-blowers. While it’s short-staffed on inspectors, OSHA is likely to make enforcement of the ETS a high priority.
Where can I read more FAQs?
OSHA has prepared 98 frequently asked questions here.
Where can I read the entire ETS?
The text of OSHA’s guidance is available here.
Industrial Commission of Arizona Statement on OSHA Vaccine ETS
Today, the Federal Occupational Safety and Health Administration (“OSHA”) issued a sweeping emergency temporary standard (“ETS”) without any opportunity for public comment prior to it going into effect. The ETS, which requires qualified employers (100 or more employees) to develop, implement, and enforce a mandatory COVID-19 vaccination policy, would force employees to choose between being vaccinated against their will, completing weekly COVID-19 testing (at the employee’s expense), or losing their jobs.
Although messaging from OSHA might suggest that the ETS is immediately binding on employers across the country, including in Arizona, this is not the case. Arizona is one of 22 OSHA-approved state plans that have exclusive responsibility for the development and enforcement of occupational safety and health standards within their states. Since 1974 when Arizona’s state plan was formally approved by OSHA, the Industrial Commission of Arizona has proudly worked to establish a model program for protecting the safety and health of Arizona’s workers in every corner of the state and in every industry.
Under Arizona’s long-approved state-plan procedures, the Industrial Commission has exclusive authority to decide if, when, and to what extent the State of Arizona will adopt the OSHA vaccination ETS. The Industrial Commission has diligently followed these approved procedures without issue for 47 years and will follow them as it reviews the 490-page OSHA vaccination ETS publication that OSHA only revealed today. Until such time that the Industrial Commission takes formal action to adopt all or part of the vaccination ETS, however, the temporary standards are not binding or enforceable against Arizona’s private and public sector employers and employees.
The Industrial Commission has proactively put together a COVID-19 Response Team to manage complaints, answer questions, and develop programs to mitigate and prevent the spread of COVID-19. The Commission has also continued to partner with associations, organizations, and stakeholders to promote COVID-19 safety and awareness. Arizona has a 47-year track record of protecting the safety and health of Arizona’s workers and remains fully committed to this mission.