Rancho Mesa's Alyssa Burley and, Vice President of the Construction Group, Sam Clayton discuss federal OSHA’s new COVID-19 Emergency Temporary Standard.

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Director/Producer/Host: Alyssa Burley

Guest: Sam Clayton

Editor: Lauren Stumpf

Music: "Home" by JHS Pedals, “News Room News” by Spence

Transcript

[Introduction Music]

Alyssa Burley: Hi, this is Alyssa Burley with Rancho Mesa’s Media Communications and Client Services Department. Thank you for listening to today's top Rancho Mesa news brought to you by our Safety and Risk Management Network, StudioOne™.

Welcome back everyone. My guest today is Sam Clayton, Vice President of the Construction Group with Rancho Mesa. Today, we’re going to discuss federal OSHA’s new COVID-19 Emergency Temporary Standard. Sam, welcome to the show.

Sam Clayton: Good morning, Alyssa. Nice to be back in StudioOne™.

AB: Now, last week, the U.S. Department of Labor’s Occupational Safety and Health Administration, also known as OSHA or fed OSHA, released its new emergency temporary standard, or ETS, addressing COVID-19 in the workplace. The new ETS will affect more than 84 million. Sam, in a nutshell, what does fed OSHA’s new ETS require of employers?

SC: Under this new emergency standard, employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt the policy requiring employees to be either vaccinated or undergo weekly COVID-19 testing and wear a face covering at work.

AB: Does the mandate apply to all businesses?

SC: Great question. No, this emergency temporary standard covers employers with 100 or more employees.

AB: Alright, we know that the ETS requires covered employers to either ensure their employees are vaccinated or have regular testing. What specifically are employers being compelled to do in order to stay compliant with these new standards?

SC: There are four main items employers are required to do in the ETS.

First, determine the vaccination status of employees, obtain acceptable proof of vaccination and maintain records and a roster of each employee’s vaccination status. This information will need to be kept confidential, so make sure the person responsible for managing this task is aware of the responsibilities. Your records must be updated when an employee’s vaccination status changes. If a status is not documented, the employee must be treated as unvaccinated.

Then, require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove that employee from the workplace, regardless of vaccination status. Employers must not allow the employee to return to work until they meet the specific criteria. Employers must ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly if the employee is in the workplace at least once a week, or within 7 days before returning to work if the employee is away from the workplace for a week or longer. So, that might apply if the employee is on vacation for a week. They’re not in the office, but they’ll still need a test within the previous 7 days before returning to the workplace. Last, employers will need to ensure 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 standard also requires employers to provide paid time to workers to get vaccinated and allow paid leave to recover from any side effects from the vaccination.

AB: Does the ETS require employers to pay for testing?

SC: Surprisingly, no. The ETS does not require employers to pay for testing. However, employers may be required to pay for testing to comply with other laws, regulations, and collective bargaining agreements. So, check with state and local jurisdictions for requirements. Employers may require employees to pay for the weekly testing, if the employer chooses to offer testing as an alternative to get the vaccination.

AB: When does this all go into effect?

SC: The ETS is effective immediately upon its publication in the Federal Register, which took place on Friday, November 5th, 2021. Employers must comply with most requirements within 30 days of the publication and with testing requirements within 60 days of publication, or January 4th of 2022.

While more than half of the states are challenging the legality of federal OSHA’s ability to enforce the new ETS requirements, it is likely that individual states with their own OSHA State Plans will eventually adopt the new ETS as their own with or without modifications.

AB: California’s State Plan, Cal/OSHA, implemented the most stringent COVID-19 ETS in the country months before federal OSHA released its original COVID-19 ETS that was only applied to the health care industry. So, we anticipate that Cal/OSHS will adopt federal OSHA’s ETS even if other state do not. So, what should employers do to prepare for this?

SC: Employers of all sizes should pay close attention to not only what federal OSHA’s ETS requires, but also requirements issued by state and local municipalities. Once your state adopts a COVID-19 ETS, be sure to also check your local ordinances, as some counties and cities are requiring additional measures.

AB: Absolutely. If listener’s states have not yet adopted the new federal OSHA ETS, which applies to our California clients, we recommend you start thinking about a game plan and maybe an alternate plan depending on whether your State Plan decides to adopt the ETS as it is, as its been published, or if they decide to adopt a more stringent ETS. So, employers should consider will you, as the employer, require all employees to be vaccinated? Who will manage the vaccination records and the ongoing paperwork? If you're going to allow testing as an alternative to the vaccine, who will pay for testing, the employer or the employee? If testing is offered as an alternative to the vaccine, will the company specify which type of tests will be acceptable? The PCR or the antigen? The PCR tests for the virus DNA, while the antigen rapid test looks for a specific protein either is allowed, but the antigen test must be proctored by a medical professional and doing it virtually is allowed, or it has to be witnessed by the employer for the over-the-counter home test. Also, think about who will administer the weekly tests and as we learn more, Rancho Mesa will provide guidance and resources to help our clients mitigate risk in the workplace. So Sam, if clients have questions, what's the best way to get in touch with you?

SC: I can be reached at (619) 937-0167 or sclayton@ranchomesa.com.

[Closing Music]

AB: Sam, thank you for joining me in StudioOne™.

SC: Thanks for having me, Alyssa.

AB: This is Alyssa Burley with Rancho Mesa. Thanks for tuning in to our latest episode produced by StudioOne™. For more information, visit us at ranchomesa.com and subscribe to our weekly newsletter.