Last week, the Occupational Safety and Health Administration (OSHA) released a new Emergency Temporary Standard (ETS) on COVID-19 Vaccinations and Testing. The ETS covers employers with 100 or more employees firm or corporate-wide. OSHA has also stated that they will examine the feasibility of expanding the ETS to smaller employers in the future.
It appears assisted living is not included in this ETS as OSHA specifically excludes settings that were the subject of requirements in the Healthcare
ETS OSHA released in July 2021, which included AL. This was likely an oversight by OSHA that will be corrected to include health care settings not covered in the recently released CMS Vaccine Interim Final Rule. The OSHA ETS does not apply to the SNF, NF, and ICF-IID providers that are covered under the CMS vaccine IFR.
A federal appeals court temporarily blocked the OSHA ETS and has given the administration until Monday November 8 to respond. AHCA/NCAL will continue to monitor this changing situation and keep members informed.
For now, AHCA/NCAL recommends AL providers with 100 or more employees (or providers who are part of a multi-facility organization with 100 or more employees) start preparing to be in compliance with the ETS, including:
1. Determine if your organization meets the 100-employee threshold using this resource
2. Implement a mandatory COVID-19 vaccination policy with or without an exception allowing employees to undergo weekly testing (to be started by January 4, 2022 per ETS) and wear face coverings at the workplace (beginning December 5, 2021).
- OSHA has created sample policies that can be found on the OSHA ETS website
- Employers are not required to cover the cost of weekly testing
3. Create a list showing vaccination status of each employee and obtain proof of vaccination. These records must be maintained by employers as confidential medical records and retained for the time period the ETS is effective.
4. By December 5, 2021, employers must provide employees reasonable paid time off to get vaccinated and recover from any side effects. Note that this requirement is already in place per the OSHA ETS released in July.
5. Provide employees with information so they understand the requirements of the ETS.
6. Ensure you are familiar with the reporting requirements for COVID-19 fatalities and in-patient hospitalizations.
This new ETS does not change OSHA PPE requirements for COVID-19 when working with individuals who are suspected or known to have COVID-19.
OSHA’s ETS website has helpful resources including templates, detailed FAQs, a short webinar and links for the full ETS and summary.
The Society for Human Resource Management (SHRM) has released a free guide for employers on how to comply with the new ETS on their
website.
The OSHA rule preempts any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing. The ETS serves as an interim final rule and has a 30-day comment period. AHCA/NCAL plans to comment once the language has been updated to include AL in the ETS and will keep members informed of opportunities for commenting.