On November 4, the Office of Safety and Health Administration (OSHA) issued an aggressive emergency temporary standard (ETS) with a tight implementation timeline on vaccination, testing, and face coverings.
For Washington State, the Department of Labor and Industries (L&I) has 30 days from November 4 to promulgate an ETS that is equivalent to or at a higher standard than the federal standard. Regardless of the outcome of various court challenges, knowing the core requirements of the newly issued federal ETS is important to prepare for comments and implementation preparation.
Who is covered?
Employers with over 100 employees nationwide, including part-time and seasonal employees, as of the effective date of the ETS (November 5, 2021). An employer is subject to the ETS once the threshold is met.
Contractors or temporary workers assigned from a staffing agency are not included in the count. Franchisors and franchisees are treated as separate entities for coverage purposes.
Who is not covered?
Employees who work remotely (away from co-workers or the public) or outdoors. Workplaces covered by the ETS for healthcare and federal contractors.
Timeline and core requirements:
- November 5 to December 4 is the comment period for the federal ETS. Washington state’s ETS has yet to be issued and will likely have a different comment period.
- December 6, 2021 –
- Written vaccination policy – employers need to have a written policy in place about the ETS delivered either digitally or on paper to employees. Policy needs to include requirements, vaccine information, and penalties for knowingly falsifying documents.
- Paid time off – employers are required to offer employees up to 4 hours of paid time off (PTO) per vaccine dose, which includes time spent during work hours on making appointments, completing related paperwork, traveling to and from vaccine sites, and post-vaccination monitoring. Employers may not require employees to use any leave hours accrued.
Employers may require employees to use accrued PTO but may not require employees to borrow against future PTO. In addition, employers are required to provide “reasonable” time off and paid sick leave to recover from the side effects of vaccination, but employers may set a cap. OSHA presumes 2 days as reasonable. This provision does not apply to vaccinations received pre-ETS or booster shots.
- Removal from the workplace of positive COVID-19 cases – employees must provide prompt notice of a positive COVID case. Removal from the workplace without employers’ obligation to provide PTO until one of the following conditions is met: a negative test is produced, meeting CDC’s return-to-work criteria, or a healthcare provider recommends returning to work.
- Exemptions – employers may grant medical or religious exemptions using guidelines provided by the EEOC.
- January 4, 2022 –
- Weekly testing mandate begins for the unvaccinated employees. Employees are responsible for the cost of testing unless the employer authorizes a medical or religious accommodation under the American Disability Act or other laws, regulations, or collective bargaining agreements that require employers to pay or the employer chooses to pay for it.
For a deeper dive into the ETS, Washington Retail encourages retailers to reference the National Retail Federation’s ETS core requirements deck.