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The Occupational Safety and Health Administration (OSHA) in the United States has issued an emergency temporary standard (ETS) that is designed to improve protection for unvaccinated employees of large employers.
According to the US Department of Labor’s agency, the ETS, which came into force on 5 November, will provide greater protection for more than 84 million private sector workers from the spread of coronavirus in the workplace.
Under the ETS, employers that are covered by its requirements ‘must 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 and wear a face covering at work.’
The standard applies to all employers with 100 or more employees – firm or company-wide – and covers two-thirds of the United States’ private-sector workforce. In the 26 states and two territories with OSHA State Plans, it will also apply to public sector workers employed by state and local governments.
To start with, employers covered by the ETS have to provide paid time to workers so they can get vaccinated and to allow for paid leave to recover from any side effects.
In addition, employers have to determine the vaccination status of each employee, obtain acceptable proof of the vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
Employers covered by the ETS also have to make sure that their employees provide prompt notice if they test positive for COVID-19 or receive a COVID-19 diagnosis using a COVID-19 antigen test.
‘We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace'
Should that happen, they are then required to remove the employee from the workplace, regardless of their vaccination status. The employee can only return to work once they receive a negative result on a COVID-19 nucleic acid amplification test (NAAT).
Under the Centers for Disease Control and Prevention’s ‘Isolation Guidance’ a COVID-19 positive person can also stop isolating when three criteria are met. First of all, at least ten days must pass since the first appearance of the employee’s symptoms. Second, the employee must have gone at least 24 hours without a fever, and third their other symptoms (excluding loss of taste and smell) have improved. If a worker has tested positive but never experiences any COVID-19 symptoms, they can stop isolating after ten days from the date of their positive test.
For those employees that are not fully vaccinated, employers are now required to test each worker who is in work at least once a week on a weekly basis to check they haven’t tested positive. Alternatively, if the worker is absent from work for a week or longer, they must be tested for the virus within seven days of returning.
The ETS also places a requirement on employers to ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when they are indoors or when they share a vehicle with another employee.
Employers do not have to pay for the COVID-19 tests under the ETS. However, they may still need to cover the testing costs to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements, OSHA notes. Employees will have to cover the costs for face masks.
The government agency has published a suite of resources to assist with compliance, including a webinar, frequently asked questions and materials.
‘Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect’
OSHA notes that since the pandemic emerged in the United States last year, 750,000 people have died while millions more have been infected. It adds that a large number of those who died and were infected had been exposed to the virus while they were at work.
OSHA estimates that the ETS will prevent more than 250,000 workers from being hospitalised and will also save countless lives.
‘We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace…’ said US Labor Secretary Marty Walsh.
‘Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.’
The OSHA announcement follows moves by a number of leading companies in the United States that have adopted vaccine requirements or regular testing ‘as necessary measures to protect their workers and customers’.
Employers are legally required to comply with most of the ETS’ requirements within 30 days of its publication and with its testing requirements within 60 days of its publication.
The US announcement comes a week before the Westminster government in the UK introduced COVID-19 vaccination as a condition of employment for all frontline health and social care workers in England.
Under the new measures, health and social care workers, including volunteers who have face-to-face contact with service users, will need to provide evidence they have been fully vaccinated against COVID-19 before they can be deployed, unless they are exempt.
The deadline for being double jabbed was 11 November. Although nearly 90% of NHS staff have already received both jabs, the latest statistics reveal that more than 103,000 NHS trust workers and 105,000 domiciliary care workers had not been reported as fully vaccinated when the government published the new measures on 9 November.
The requirements are expected to come into force in the spring with enforcement starting from 1 April, subject to Parliamentary approval.
Some critics have warned that these measures could prompt private sector employers to make it a legal requirement for all of their employees to be fully vaccinated or lose their jobs, even in industries where risks are well managed and staff pose a negligible risk to the public and other employees. Read the IOSH magazine article here.