The Occupational Safety and Health Administration (OSHA) has proposed the Emergency Temporary Standard (ETS) concerning the COVID-19 vaccine mandate. Companies with 100 or more employees must ensure that all their employees are fully vaccinated by January 4, 2022, or go through weekly testing.
What is the Emergency Temporary Standard?
The Emergency Temporary Standard (ETS), proposed by OSHA, is designed to address the occupational safety and protection of employees. The ETS intends to preempt any State or local policies that may limit or ban employers' authority to require vaccination.
Workplace outbreaks large and small have been documented, particularly in the first year of the COVID-19 pandemic. A congressional committee recently found that 59,000 meatpacking workers were infected with the coronavirus and that at least 269 of them died. [NPR, 2021]
How can companies comply with the ETS?
The ETS applies to all companies with 100 or more company-wide employees. If at any time, while ETS is in effect, that company has at least 100 employees, they must comply with the ETS. This includes minors, part-time, temporary, seasonal, and remote employees. Although employees who work from home or work exclusively outdoors are included in the total number of employees, they are not required to be vaccinated, as long as they do not come in contact with other employees or customers.
What documentation is needed to prove vaccination status?
Fully vaccinated is defined by the United Department of Labor as "a test for SARS-CoV-2 that is cleared, approved, or authorized, including emergency use authorizations or EUAs by the US Food and Drug Administration (FDA)." (1)
Fully-vaccinated employees should be able to provide at least one of the following:
- Record of immunization from a health care provider or pharmacy
- Copy of the COVID-19 vaccination card
- Copy of medical records documenting the vaccination
- Copy of immunization records from a public health, state, or tribal immunization information system
- Copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of the health care professional or clinic site administering the vaccine(s).
There might be questions regarding those who are unable to provide proof of vaccination, due to loss or theft of their vaccination card.
For more details on vaccine documentation, please visit OSHA frequently asked questions.
What are the deadlines for ETS?
By December 5, 2021, employers must require unvaccinated employees to wear face coverings in the workspace. Unvaccinated employees are not required to wear face coverings when they are in a room alone with floor-to-ceiling walls as well as a closed door. Unvaccinated employees may also remove their face coverings for a limited time while eating or drinking.
January 4, 2022, is the deadline to mandate proof of vaccination status of all employees or begin weekly COVID-19 testing.
What do restaurants need to know about ETS?
Vaccine mandates could potentially create an additional barrier for restaurants, as restaurants continue to navigate the labor shortage. According to Black Box Intelligence, 59% of restaurant employees will quit if mandates are put into place (2). Although the ETS will not be a permanent standard, there are some things to look out for if restaurants do not comply with the policy.
OSHA anticipates that the ETS will be in effect for six months. Those who do not follow the standard could face fines of $13,653 per violation and as much as $136,532 per repeated offense (3).
Regarding unvaccinated employees, employers are not required to pay for testing, however must provide up to 4 hours of paid leave for the employee to receive vaccines and/or recover from any potential side effects. Employers cannot require employees to use existing leave for vaccinations. Companies must also inform each employee of the requirements of §1910.501 as well as any other policies and procedures the employer establishes to implement the ETS.
If an employee frequents the workplace less often than every 7 days, then the employee must be tested for COVID-19 within 7 days prior to returning to the workplace and must provide proof of a negative test upon return to the workplace.
At the moment, the ETS is put on hold, however, restaurants and other hospitality companies should stay on alert for any potential mandates.