What happened: The Occupational Safety and Health Administration (OSHA) will publish Nov. 5 an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees to mandate COVID-19 vaccination or testing and masking for workers who choose to remain unvaccinated. It takes effect immediately upon publication in the Federal Register and will remain in effect for six months, which is early May.
Why it matters: The ETS requires affected employers in all industries to:
- Assure their employees are either fully vaccinated by Jan. 4, 2022, or taking a weekly COVID-19 test and wearing masks when in the workplace;
- Remove employees who test positive from the workplace;
- Provide paid time off for employees to get vaccinated and, if necessary, sick leave to recover from any vaccination side effects;
- Develop a written workplace COVID-19 vaccination policy;
- Determine the vaccination status of all employees and maintain an employee vaccination status roster while the ETS remains in effect;
- Provide employees with information about the ETS and vaccines;
- Report and work-related COVID-19 deaths within eight hours and work-related COVID-19 hospitalizations within 24 hours to OSHA; and
- Other than the January vaccination deadline, all other requirements of the ETS must be fulfilled by Dec. 5.
The ETS does not require employers to pay for the cost of testing unvaccinated employees, and also notes that vaccines are generally provided free of charge nationwide.
The following ETS provisions are particularly relevant to transportation construction employers:
- Employees working “exclusively” outdoors are exempt from the ETS. While OSHA cites certain construction disciplines as examples, its commentary suggests that only a small percentage of those employees will be considered exempt. To qualify for the exemption, the employee must spend only “de minimus” or “brief” time indoors during the workday, such as visiting a trailer or restroom, and may not travel in vehicles with work colleagues.
- Generally, workers on a multi-employer construction worksite are not considered together. Each company is only responsible for its own employees. A smaller contractor or supplier employing less than 100 persons would be fully exempt from the ETS, even though they have employees working on a larger site with those of other firms.
- On the other hand, a contractor who employs 100 or more people, yet had them spread out over multiple sites in smaller numbers, is still covered by the ETS.
- ARTBA raised these and other issues with Biden administration officials in a series of letters and meetings while it was formulating the ETS.
OSHA’s ETS announcement also includes revisions and clarifications for a separate executive order previously announced by the White House, which will mandate vaccinations for employees of all firms doing direct business with the federal government:
- New and revised direct federal contracts will postpone the employee vaccination requirement to Jan. 4, 2022, aligning it with the ETS vaccination deadline.
- Direct federal contractors will be covered by this executive order mandating vaccines, but not the OSHA ETS.
What’s next: While the ETS takes effect right away, OSHA will be accepting comments for 30 days on possible expansion of these requirements to smaller employers, as well as potential widening of requirements such as masking in the workplace. Based on specific concerns already provided by numerous ARTBA members and chapters, the association is conferring with other national groups about potential collective action to prevent adverse impacts on the transportation construction and allied industries.
Additional resources:
- ARTBA will present a free webinar at 12:30 p.m. Eastern, Nov. 12, featuring employment law experts Phillip Russell and Dee Anna Hayes of Ogletree Deakins. They will share insights on the ETS and answer questions. Register here.
- The text of the rule, fact sheets, an FAQ, and an introductory webinar can be found at the agency’s ETS website.
- If you have questions or wish to share concerns, please contact ARTBA’s Nick Goldstein.
