It’s back: OSHA sets dates for enforcement of COVID-19 emergency temporary standard

Following a federal court’s removal of a stay order, the U.S. Department of Labor’s Occupational Safety Health Administration, OSHA, has announced that it will begin issuing citations for noncompliance of its COVID-19 emergency temporary standard, or ETS, that was announced in early November.

OSHA says it will issue citations for noncompliance with the ETS administrative requirements after Jan. 10, 2022, and testing requirements after Feb. 9, 2022.

The original ETS went into effect Nov. 4, 2021, but two days later, the U.S. Court of Appeals for the Fifth Circuit issued a stay order, effectively halting implementation of the ETS. Late last week, the U.S. Court of Appeals for the Sixth Circuit dissolved the Firth Circuit’s order. However, it should be noted that the Supreme Court has already been petitioned regarding another stay of the ETS, so credit unions should stay tuned.

About the COVID-19 ETS
The ETS applies to employers with 100 or more workers — firm or companywide — and under the rule as issued, provides employers with two main options:

  • mandate and verify that all employees are vaccinated against COVID-19; or
  • test unvaccinated employees weekly for COVID-19 and ensure those employees wear masks in the workplace.

The ETS also requires employers to:

  • 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 seven days before returning to work (if the worker is away from the workplace for a week or longer); and
  • 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 ETS does not require employers to pay for testing, however, 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, according to OSHA.

The ETS does not apply to employees who do not report to their workplace where co-workers or customers are present, employees working from home or employees who only work outdoors. However, these employees must be included in the total count of employees to meet the 100-employee threshold under the ETS.

More information about the ETS can be accessed on the OSHA website. Credit unions with questions about the ETS can be directed to Chris Pajak, the New York Credit Union Association’s VP of member engagement and a certified HR professional (PHR), at 1 (800) 342-9835 ext. 8188 or via email at christopher.pajak@nycua.org.

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