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OSHA Publishes ETS Rule - What Contractors Need to Know

Article by Anthony Darkangelo, CEO of FCA International

Nov 8, 2021

OSHA published its Emergency Temporary Standard (ETS) on Thursday (11/4) mandating vaccines for all employees for companies with 100+ employees. The ETS has been released but is facing many challenges that may affect its implementation prior to the January 4, 2022 deadline.

FCA International will continue to utilize all resources in our efforts to protect our industry’s interests.

With immediate opposition to the ETS upon its release, including legal action from states' attorneys general, federal and industrial groups, it is expected that there could be delays in the implementation date and/or changes to the ETS itself. Although current opposition could lead to difficulties for the ETS in its current form, FCA will continue to provide you information on the rule that would affect your business when/if implemented.

I have asked FCA Legal Counsel to provide an overview of the ETS and how it would affect you as it is currently published.

Below you will find some key points on the ETS. Stay tuned for more information in the coming days, including a webinar with FCA Legal Council on Nov. 9.

Effective Date(s): While the ETS rule will be effective immediately, compliance with the ETS Rule is delayed 30 days(i.e., December 6,  2021) and compliance with COVID-19 testing for unvaccinated workers is delayed 60 days (i.e., January 4, 2022).

The ETS does not require employers to provide or pay for testing. However, employers could be required to pay depending on local/state laws and their collective bargaining agreement.

All covered employers must ensure unvaccinated employees wear a face mask while in the workplace.

There are exceptions to the rule for employees with medical contraindications; employees who have a medical need to delay vaccination; and employees entitled to reasonable accommodations due to a disability, or sincerely held religious beliefs, practices or observances that conflict with the vaccination requirement.

Challenges Could Change the ETS or Affect Compliance Date: 11 states have already filed lawsuits challenging the rule, and several industry groups have also announced their intent to challenge it. At least one of the lawsuits filed and expected to be filed are likely to cause enforcement of the standard to be put on hold. It’s also possible a court will invalidate or limit the scope and application of OSHA’s ETS.

Employers Required to have COVID-19 Vaccination Policy – all covered employers are required to develop, implement and enforce a mandatory COVID-19 vaccination policy unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing (at least weekly) and wear a face covering at work. Click here to request a vaccination policy template from FCA International.

Employers Pay for Employee Time Off to get Vaccinated – all covered employers must provide paid-time off for their employees to get vaccinated and, if needed, sick leave to recover from side effects that keep them from working.

OSHA ETS and the Vaccine Mandate for Federal Contractors – the deadline for the federal contractor vaccination requirement will be aligned with the deadlines for this ETS. The ETS will not be applied to workplaces subject to the federal contractor requirements or the Centers for Medicare and Medicaid Services (CMS) interim final rule for healthcare workers.

Click here to read the full memo from FCA International to learn more.


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