OSHA has sent to the White House Office of Information and Regulatory Affairs (OIRA) the Emergency Temporary Standard (ETS) that will require employers with at least 100 employees to ensure their employees are vaccinated or that they submit a negative COVID test on a weekly basis.
Although we know the ETS is at OIRA, we do not know what it says or any details. How long the ETS will remain at OIRA is unknown, but the possibility exists that the ETS could be cleared in as little as one day, allowing it to be issued as early as this week. There are a number of pending lawsuits challenging this rule.
Ordinarily, OIRA allows outside groups to meet to present concerns about regulations under review. We do not yet know whether OIRA will permit such meetings this time. AFS is asking for a meeting. AFS sent a letter last week to the Acting Director of OSHA outlining our concerns and questions about the ETS. There are many questions about what the ETS will require, such as whether employers will have to provide the vaccine or just require that employees get it. Will there be a period for employers to come into compliance before employers can be cited for violations? How will the testing option work – will employers be required to provide the tests, or will employees have to take care of their own tests? There are many other questions, as well.
We expect the ETS will require employers to provide some paid time off for employees to get vaccinated or to recover from getting vaccinated, although the exact amount of time or what type of recovery will trigger the leave are unknown. OSHA has said this leave requirement can be satisfied by employees using currently available paid leave. As we discussed at the AFS EHS Conference last week, we also expect that the ETS will have a recordkeeping requirement for employers.
Once an ETS is published in the Federal Register, it takes effect, and it is also open for comments. Under the OSH Act, the ETS is to remain in place for six months. OSHA can then replace it with a permanent standard that reflects the comments it has received or discontinue the standard. OSHA already issued an ETS in June covering healthcare workplaces and requiring certain practices to protect employees from exposure to the coronavirus. That ETS is set to last until late December.
AFS is continuing to aggressively represent the interests of the metalcasting industry on this issue. As soon as we have more information, we will share it with AFS members. If you have any questions, please email Stephanie Salmon, AFS Vice President of Government Affairs, at ssalmon@afsinc.org.