OSHA Issues COVID-19 Vaccination and Testing ETS: An Initial Overview for ABA Members

The Occupational Safety and Health Administration (OSHA) issued a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).  It will be published in the Federal Register tomorrow and go into immediate effect. ABA is still reviewing the ETS but wanted to provide members with information as quickly as possible.

Important Links:

• OSHA ETS Federal Register Notice
• OSHA COVID-19 Vaccination and Testing Homepage
• OSHA FAQs
• OSHA ETS Summary
• OSHA Webinar on the ETS

 Overview of the OSHA ETS:  

• The ETS covers employers with 100 or more employees – firm or company-wide.
• The ETS requires employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
• The ETS 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.
• The ETS requires 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.
  • The ETS does not require employers to pay for testing. 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.
• The ETS requires employers to 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 7 days before returning to work (if the worker is away from the workplace for a week or longer).
• The ETS requires employers 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 requires employers to provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.

OSHA ETS Compliance Timeline:

• Employers must comply with most requirements within 30 days of publication (Dec. 5) and with testing requirements within 60 days of publication (Jan. 4^th).

ABA’s Actions Regarding this Emergency Temporary Standard:

• September – President Biden announces COVID-19 Action Plan, delegates OSHA to manage vaccine/testing mandate; ABA raises concerns, urges collaboration between government and baking industry to determine details of the mandates
• September – ABA, along with other trade associations, asks OSHA to reconsider its decision not to accept input from interested stakeholders on its upcoming Emergency Temporary Standard before it issues the rulemaking.  
• September – Since joining in April 2021, ABA greatly increases Member outreach regarding the Rapid Action Consortium (RAC) in order for the baking industry to be directly engaged with testing manufacturers and others in the business community
• October – OSHA sends their proposed ETS to the White House’s Office of Management and Budget (OMB), ABA sends letter to OMB in partnership with food industry groups outlining concerns an ETS would have on an already stressed workforce landscape
• October – ABA participates in 3 meetings with OMB to advocate for Member’s concerns and questions regarding timing, costs, and management of ETS implementation
• November 4 – ETS is announced and submitted to Federal Register for immediate implementation
• November 4 – ABA’s HR and Safety Professionals host virtual conference
• November – ABA to host informational Members-only webinar (date TBD)
• December – ABA to submit official comments to OSHA advocating for changes to the ETS based on Member feedback/concerns

What happens next: 

ABA will be briefly covering the OSHA ETS at the HR/Safety Professionals Group Virtual Conference this afternoon at 2 pm.  Additionally, ABA is in the process of setting up a webinar discussing the OSHA ETS. If you have any questions, please email Lauren Williams at lwilliams@americanbakers.org. We will be making a list of questions to be covered at the upcoming webinar.

Lastly, ABA will be submitting comments in response to the OSHA ETS. We welcome and encourage member feedback on the new requirements.

-About the American Bakers Association-

The American Bakers Association (ABA) is the Washington D.C.-based voice of the wholesale baking industry. Since 1897, ABA has worked to increase protection from costly government actions, build the talent pool of skilled workers with specialized training programs, and forge industry alignment by establishing a more receptive environment to grow the baking industry.