Biden Administration Releases COVID-19 Emergency Temporary Standard

On Thursday, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) unveiled the COVID-19 emergency temporary standard (ETS) for private-sector employers. Under this standard, starting December 5, 2021, employers with 100 or more employees - firm or company-wide - are mandated to provide paid time off to workers to get vaccinated, as well as paid leave for an employee’s recovery from any side effects. Employees who are not fully vaccinated will have to wear a face mask indoors or when inside a vehicle with another person for work purposes.

“As part of OSHA’s mission to protect the safety and health of workers, this rule will provide a roadmap to help businesses to keep their workers safe,” Deputy Assistant Secretary of Labor for OSHA Jim Frederick said in a released statement.

Starting January 4, 2022, employers are required to ensure workers have received a COVID-19 vaccination. This can be through the two doses of Pfizer or Moderna, or one dose of Johnson & Johnson. From this point, unvaccinated workers will also have to show a negative test weekly. If any employee, regardless of vaccination status, produces a positive COVID-19 test or gets a COVID-19 diagnosis by a licensed healthcare provider, that employee must promptly provide notice of those developments. The employer will have to immediately remove that worker from the workplace. If the employee is away from work for a week or longer, the employer is required to ensure that employee is tested for COVID-19 within 7 days before returning to work. These specific requirements will go into effect after the January 4 deadline for employees to get vaccinated. 

The ETS does not require employers to pay for testing or face coverings, but that could be required under other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers must provide employees information about this ETS, as well as the company’s workplace policies and procedures in place to adhere to the ETS. 

State laws that prohibit or limit an employers’ authority to mandate vaccinations in the workplace are preempted by this ETS. HF902, enacted in Iowa on October 29, 2021, broadens the availability of exemptions to vaccine requirements and may or may not be preempted by the ETS and clouds employer compliance with the new OSHA ETS.

Governor Reynolds immediately released a statement following the ETS announcement, stating, “I believe the vaccine is the best defense against COVID-19, but I also firmly believe in Iowans’ right to make healthcare decisions based on what’s best for themselves and their families, and I remain committed to protecting those freedoms. President Biden should do the same.” Last week, Governor Reynolds announced the state of Iowa is joining nine other states to sue the Biden Administration for federal contractors. 

“We will take immediate legal action to challenge the Biden Administration’s rule on vaccine mandates for employees of companies employing 100 or more,” Governor Reynolds added in her statement. ABI has previously criticized the proposed OSHA rule as misguided and supports legal action to challenge the rule.
OSHA has provided a webinar, a list of Frequently Asked Questions and other compliance materialsthat you can access.