How will you get your business ready for the ETS?

Quick Access to the Occupational Safety and Health Administration Emergency Temporary Standard Resources

The ETS was officially filed in the Office of the Federal Register on June 17, 2021, and it became effective when it was published on June 21, 2021. As of the November 2021 OSHA ETS Report and their consultation with the Centers for Disease Control and Prevention (CDC) (through the National Institute for Occupational Safety and Health) (NIOSH)). OSHA has determined that the requirements of the healthcare ETS released on June 10, 2021, remain necessary to address the grave danger of COVID-19 in healthcare. OSHA will continue to monitor and assess the need for changes in the healthcare ETS each month.

Starting December 5, 2021, employers must ensure all provisions of the ETS are met other than the testing requirements for unvaccinated workers (including, but not limited to establishing a policy on vaccination/testing, determining the vaccination status of each employee, and following recordkeeping requirements) are addressed in the workplace.

Starting January 4, 2022, employers must implement weekly testing requirements for employees who are not fully vaccinated and comply with the all the ETS requirements.

COVID-19 Healthcare ETS – Frequently Asked Questions

How will Pending Litigation Impact the Start Date for the ETS?

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” The U.S. Court of Appeals for the Sixth Circuit now has jurisdiction over ETS challenges and DOL has filed a motion to lift the stay. While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. Note that the comment period is separate from the litigation.

What costs must employers bear to meet the requirements of the COVID-19 ETS?
The ETS specifies that the implementation of all requirements of the standard, with the exception of any employee self-monitoring conducted under paragraph (l)(1)(i), must be at no cost to employees. OSHA considers costs to include not only direct monetary expenses to the employee, but also the time and other expenses necessary to perform required tasks.
When the ETS permits employees to use additional PPE, beyond what is required by the ETS, the ETS does not require employers to pay for this PPE. Here are some examples:

  • The ETS includes requirements for facemasks, face shields, and in some circumstances, respirators and other personal protective equipment (PPE). These items must be provided at no cost to employees. However, the ETS provides an exception to this requirement for employees who provide their own face shields. When the employer allows employees to use their own face shields, the employer is not required to reimburse the employees for the cost of those face shields.
  • In addition, the ETS requires the employer to permit an employee to wear their own respirator instead of a required facemask. In this circumstance, when an employee provides and uses their own respirator, the employer is not obligated to pay the employee for the cost of procuring or maintaining the respirator.
What are the symptoms of COVID-19?
COVID-19 symptoms include: fever or chills; cough; shortness of breath or difficulty breathing; fatigue; muscle or body aches; headache; new loss of taste or smell; sore throat; congestion or runny nose; nausea or vomiting; and diarrhea. Some employees with COVID-19 can be expected to have mild symptoms or not have any symptoms.
If an employee has one of the symptoms listed above, does that mean that the employee has COVID-19?
Not necessarily. Many COVID-19 symptoms are commonly associated with other infectious and non-infectious conditions. However, monitoring for COVID-19 symptoms through regular health screening allows employees to seek medical attention and get tested for COVID-19 as appropriate.
May an employer choose to have employees self-monitor for symptoms, or must symptom screening be done on site?
Employers have discretion in choosing whether to implement self-monitoring or in-person screening; an employer can also choose to utilize both methods. Employers who choose to have employees self-monitor for COVID-19 symptoms can assist employees in that effort by providing them with a short fact sheet to remind them of the symptoms of concern. Employers may also consider posting a sign stating that any employee entering the workplace certifies that they do not have symptoms of COVID-19, to reinforce the obligation to self-screen before entering the workplace.
Employers who choose to conduct in-person employee screening for COVID-19 symptoms may use methods such as temperature checks and asking the employee if they are experiencing symptoms consistent with COVID-19. Employers should conduct this screening before employees come into contact with others in the workplace, such as co-workers, patients, or visitors.
Are there any safety considerations during onsite screening?
Yes. To ensure screeners and employees waiting to be screened are protected, an employer must continue to maintain compliance with all requirements of this standard for physical distancing, physical barriers, and facemask use; thus, employers may need to provide physical barriers to separate employees and screeners and ensure that employees waiting to be screened can maintain adequate physical distancing between each other. The employer should ensure screenings are conducted in a timely manner to minimize potential exposure to other employees waiting to be screened and to the screener.
Will symptom screening identify all employees who have COVID-19?
No. Some individuals with COVID-19 may be pre-symptomatic (i.e., have not developed symptoms yet) or asymptomatic (i.e., do not develop symptoms over the course of infection) but can still transmit the virus. Therefore, employers must continue to follow all requirements of the standard, using health screening as only one component of a multi-layered approach.
What costs must an employer cover if it requires employees to be tested for COVID-19?
Employers must pay for costs of the test itself, as well as any time spent getting the test or time spent waiting for test results before the employee is allowed to enter the workplace. If getting the test requires the employee to travel to a location that is not at the workplace, the employer must pay the employee for the time spent traveling and for any travel costs (e.g., transportation fare, gasoline).

Employee notification to employer of COVID-19 illness or symptoms

What information related to COVID-19 must employers require employees to report to them?
Employees must promptly notify their employer when they learn they are COVID-19 positive (as confirmed by a positive test for COVID-19 or when diagnosed with COVID-19 by a licensed healthcare provider), when told by a licensed healthcare provider they are suspected to have COVID-19, when the employee is experiencing recent loss of taste and/or smell with no other explanation, or when an employee is experiencing both a fever (≥100.4° F) and new unexplained cough associated with shortness of breath.
What does OSHA mean by “promptly” notifying employers?
For employees who are not at the workplace when they meet a notification criterion, “promptly” notifying the employer would mean notifying the employer before the employee is scheduled to start their shift or return to work. In the event that the employee is in the workplace when meeting a notification criterion, “promptly” notifying the employer means notifying the employer as soon as safely possible.
Why is it important for the employee to notify the employer when they are confirmed positive for or are suspected to have COVID-19, or they are experiencing certain symptoms of COVID-19?
Each of these notification requirements is connected to a parallel requirement to remove the affected employee from the workplace. It is important to remove employees who are confirmed or suspected to have COVID-19 from the workplace to prevent the transmission of the virus that causes COVID-19 to other employees.

Employer notification to employees of COVID-19 exposure in the workplace

If an employer at a workplace is notified that a person who has been in the workplace is COVID-19 positive, what are the requirements for notification to employees regarding COVID-19 exposure?
Once an employer is notified of a COVID-19 positive person who has been in the workplace, such as employees, vendors, contractors, delivery people, visitors, or other non-employees, the employer has three separate notification obligations that must be completed within 24 hours, if applicable. The employer must notify:

1) Each employee who has been in close contact with the COVID-19 positive person in the workplace, and include in the notification that the employee was in close contact with a COVID-19-positive person and the date(s) that the close contact occurred.
2) All other employees who worked in a well-defined portion of the workplace (e.g., a particular floor) in which the COVID-19 positive person was present during the potential transmission period, and include in the notification the date(s) the COVID-19 positive person was present in that portion of the workplace during the potential transmission period.
3) Other employers whose employees have been in close contact with the COVID-19 positive person, or worked in a well-defined portion of the workplace (e.g., a particular floor) in which that person was present, during the potential transmission period. The notification must specify the date(s) and the location(s) of the COVID-19 positive person within the workplace during the potential transmission period.

However, employers are not required to notify employees who were wearing respirators and any other required PPE when a person who is COVID-19 positive has been in the workplace, and the notification provisions are not triggered by the presence of a patient with confirmed COVID-19 in a workplace where services are normally provided to suspected or confirmed COVID-19 patients (e.g., emergency rooms, urgent care facilities, COVID-19 testing sites, COVID-19 wards in hospitals).

How are close contact and the potential transmission period defined?
Close contact is defined as being within 6 feet of another person for a cumulative total of 15 minutes or more over a 24-hour period during that person’s potential period of transmission. Examples of cumulative exposures for 15 minutes could be 3 exposures for 5 minutes each or 1 exposure for 5 minutes and a second exposure for 10 minutes, over a 24-hour period. The potential transmission period runs from 2 days before the person feels sick (or, for asymptomatic people, 2 days prior to test specimen collection) until the time the person is isolated.
Why must employers make notifications within 24 hours?
This time period is necessary to ensure that employees receive timely information about a potential risk to their own health and to the health of those around them, as the notified employees may now be infectious themselves as a result of their exposure to a COVID-19 positive person. Prompt notification allows the employee to seek medical advice, be tested if appropriate, and start taking precautions such as physically distancing from household members to prevent transmission in the event that the employee is or becomes infectious. Prompt notification also permits employers to ensure that employees who have been in close contact with someone who is COVID-19 positive at work are removed from the workplace quickly in order to avoid additional workplace exposures.
What procedures can employers use to notify employees about exposures to someone with COVID-19?
When making required notifications, employers should notify each individual in a language and manner they understand via a phone call, text message, e-mail, or in person (if using protections such as physical distancing and face coverings). However, in some cases, such as when close contact did not occur and all persons who could have been potentially exposed in a general area may not be known (e.g., restroom, building floor), the employer could satisfy notification requirements by posting notices in common areas. This may include posting notices in break rooms, time clock areas, or restrooms as well as using alternative modes of communication needed to reach employees with disabilities.
Must employees maintain the COVID-19 positive person’s confidentiality when notifying employees?
Yes. When providing notice about the potential exposure, the employer must protect the infected employee’s identity. Notifications must not include any employee’s name, contact information (e.g., phone number, email address), or occupation, and the employer should avoid sharing any unnecessary information that might reveal the employee’s identity.

How do I Comment on the ETS?

The ETS on Vaccination and Testing was published in the Federal Register on November 5, 2021. The ETS also acts as a proposal for a permanent standard and OSHA has decided to extend the comment period for that rule by 45 days. Written comments on any aspect of the ETS must now be submitted by January 19, 2022 to in Docket number OSHA-2021-0007, which is the only way that OSHA is receiving comments on the ETS. Written comments on the information collection request as described in Section V.K. of the ETS preamble [2021-23643] must still be submitted by January 4, 2022 in Docket number OSHA-2021-0008.

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