On Nov. 5, 2021, federal OSHA published an emergency temporary standard (ETS) in the Federal Register. Federal OSHA has issued the COVID-19 Vaccination and Testing ETS to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination. Covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.
This standard does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in settings where employees provide health care services or health care support services when subject to the requirements of the Healthcare ETS (29 CFR 1910.502). The ETS does not apply to employees who do not report to a workplace where other individuals, such as coworkers or customers are present, employees while they are working from home or employees who work exclusively outdoors.
The ETS also requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following these doses.
Under the ETS, employers must require employees to provide notice if they contract COVID-19 and remove those employees from the workplace until they meet criteria for returning to work. The ETS also contains requirements for: providing certain information to employees in a language and at a literacy level the employees understand; reporting work-related COVID-19 fatalities and hospitalizations to OSHA; and recordkeeping.
On Jan. 3, 2022, Minnesota OSHA (MNOSHA) adopted the ETS by reference. The ETS was effective in Minnesota as of the date of publication in the State Register (Jan. 3, 2022). MNOSHA will not issue citations for noncompliance with any requirements of the ETS before Jan. 10 and will not issue citations for noncompliance with the standard's testing requirements before Feb. 9, as long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.