OSHA COVID-19 ETS Gudiance for Idaho, Utah and Wyoming Businesses
On November 4, 2021, the Occupational Health and Safety Administration (OSHA) published an Emergency Temporary Standard (ETS) that impacts most public and private enterprises with more than 100 employees. Sterling Urgent Care has put together this overview to help Idaho, Utah and Wyoming employers understand and comply with these new regulations.
While court challenges to the mandate remain, we believe that employers should be prepared for the ETS to be enacted and enforced. New deadlines in place require every employer with more than 100 employees to implement all aspects of the ETS except testing by January 10, 2022, and to implement the testing requirement by February 9, 2022.
Both Utah and Wyoming have state plans previously approved by OSHA that may not meet the standards of the COVID-19 ETS. We expect the stricter rules of the new ETS to apply and encourage Utah and Wyoming enterprises with more than 100 employees to begin the process of meeting these new COVID-19 workplace standards. Idaho does not have a state plan in place with OSHA and employers should expect the ETS regulations to take effect.
General Information on the OSHA COVID-19 ETS for Idaho, Utah and Wyoming
What is the OSHA COVID-19 ETS?
The Occupational Health Administration, OSHA, identfied exposure to SARS-CoV-2, the virus that causes COVID-19, as a Grave Danger to workers in the United States. On November 4, 2021, OSHA published an Emergency Temporary Standard to limit workplace exposures to SARS-CoV-2. This ETS includes a vaccine mandate, a facial covering mandate and reporting and communication requirements for any public or private employer with 100 employees or more.
What Are the Penalties for Non-Compliance?
Employers who violate guidance in the OSHA ETS can be fined up to $13,653 per violation. Employers who repeatedly or willfully violate the rules can be fined up to $136,532 per violation. There is no cap or limit on these fines.
Employees who willfully and knowingly misrepresent their vaccination status can face a fine of up to $10,000 and/or up to 6 months in prison.
Which Employers Must Comply with the ETS?
All private employers with 100 or more workers are subject to the OSHA ETS except for health care providers covered under the ETS issued in July.
All public employers in Utah and Wyoming with more than 100 employees are subject to State Plan rules that may be amended to meet the stricter standards of the OSHA ETS.
Public employers in Idaho are not subject to the OSHA ETS because their employees are exempt from OSHA coverage.
Who Counts as an Employee?
The following should be included in your employee count:
- All full-time workers, regardless of their employment location
- All part-time workers, regardless of their employment location
- The maximum number of seasonal workers employed within a calendar year
If any combination of the above exceeds 100 workers who receive a paycheck from an employer, that employer is subject to the COVID-19 ETS.
The following should not be included in your employee count:
- Independent contractors
- Temporary workers, unless you are the staffing agency
- You must count the number of workers available to be placed, not the number of workers actually placed
- Placements and work envirornment have no impact on worker counts in determining whether or not an employer is subject to the ETS rules; if you have more than 100 people eligible to be placed, or will during the next six months, you are subject to the ETS
If you would normally employ 100 or more people at any point in the six months after November 5, 2021, or if you expect to expand employment to this level during this period, you will be subject to the ETS unless you are a health care employer covered by the ETS issued in June 2021 or a public employer in Idaho.
Who Counts as a Vaccinated Employee?
Employees are considered vaccinated two weeks after the second dose of a two-dose vaccine, or two weeks after receiving a single-dose vaccine.
Employees are not considered vaccinated after the first dose of a two-dose vaccine. During the vaccination process, employees must wear face coverings and undergo regular COVID-19 testing.
Which Employees Are Exempt from Vaccination Requirements?
General categories of exempt employees include the following:
- In Idaho, public employees are exempt because Idaho does not have a State Plan on file with OSHA and OSHA does not have authority over state agencies. Public employees in Utah and Wyoming are not exempt in general, because Utah and Wyoming have State Plans on file with OSHA. In Utah and Wyoming, the stronger regulations between the OSHA ETS and the State Plan will prevail.
- Healthcare workers covered under the June 2021 Healthcare ETS issued by OSHA are governed by the stronger regulations of that ETS. Any healthcare workers not covered by the June ETS are covered by the November 4, 2021, ETS, with the exception of public sector healthcare workers in Idaho.
- Employees who have a medical condition that prevents vaccination are exempt from the vaccine requirement but must wear face coverings and undergo regular testing.
- Employees who are undergoing certain short-term medical treatments will remain exempt from the vaccine requirement until those treatments are complete. These employees will be subject to the face covering and testing requirements until they are vaccinated.
- Employees in a protected class, including those with disabilities and those with a sincerely held religious belief, are exempt from the vaccine requirement but must wear face coverings and undergo regular testing. Employers are not required to pay for face coverings or testing for these employees under the OSHA ETS; however, courts have held that employers must make reasonable acommodations for protected employees to allow them to stay on the job. The final language of the OSHA guidelines, guidance issued by other Federal agencies or court decisions may in the future compel employers to pay for face covering and testing for these protected employees.
The OSHA ETS also provides the following specific exemptions:
- Employees who work exclusively at home and spend no time in any workplace setting operated by the employer
- Employees who work exclusively alone in remote facilities with no other human presence or interaction
- Employees who work exclusively outdoors with no time spent traveling or meeting indoors with others; incidental use of bathroom facilities or sheltered areas is allowed, but any work-related indoor activity is not
OSHA does not define the status of buildings under construction, mines, barns or shelters under these rules. Employers should expect a very strict interpretation of outdoors and limit this designation to workers who travel to worksites by themselves and have no indoor exposures beyond bathroom use or sheltering from elements. Workers who spend most of their time outdoors but who must spend any significant amount of time indoors for meetings, security checks, clocking in or traveling to a specific worksite location with others should not be considered exempt.
Are Previously Infected Employees Exempt from Vaccination?
OSHA does not recognize a previous SARS-CoV-2 infection as a source of protection from the virus. Employees who have previously had COVID-19 must still get vaccinated to comply with the rules.
Are Vaccinations Mandatory?
Employers do not need to mandate vaccination to comply with the OSHA ETS. At their discretion, employers may choose to set up an alternative program that includes the following mandatory elements:
- The use of face coverings by all nonexempt employees
- COVID-19 testing at least once every 7 days or as a condition of returning to a worksite if the employee has been away from work for more than 7 days
How Often Must Employees Be Tested?
Employees must be tested at least once every 7 days and results for employees must always be less than 7 days old.
Employees who are away from work for more than 7 days must provide a negative test before returning to work.
Which COVID-19 Tests Are Compliant with the OSHA ETS?
Tests approved by the U.S. Food and Drug Administration (FDA) or given an emergency use authorization (EUA) by the FDA that detect current infection are compliant.
Self-administered and self-read tests must be observed by a healthcare provider, employer or telehealth proctor to be compliant.
Do Federal or Local Rules Govern My Employees?
The OSHA ETS specifically overrides any state, county, city, town or other local health regulations that apply to employers with more than 100 employees unless the local regulations are stronger than the OSHA ETS guidelines.
In Wyoming and Utah, public employers are subject to the rules stated in the OHSA ETS that are stricter than local regulations. In Idaho, public employers are exempt because Idaho does not have a State Plan on file with OSHA and OSHA does not have statutory authority over state workers.
Health care workers covered by the June 2021 OSHA ETS remain subject to the rules of that ETS. All health care workers, public and private, except public-sector health care workers in Idaho, who were not covered by the June 2021 OSHA ETS are covered by the November OSHA ETS.
In general, employers with more than 100 employess are prohibited from banning face coverings in the workplace, even if such a ban or directive exists at the state or local level.
Vaccination is mandatory for nonexempt public and private employees even if state or local officials have enacted bans on workplace vaccine mandates.
Face coverings and regular COVID-19 testing are a required condition of employment for all nonexempt unvaccinated employees, including those employees who are exempt from vaccination for medical reasons, disability or a sincerely held religious belief.
How Are New Hires Treated Under the OSHA ETS?
There are no specific provisions for new hires in the OSHA ETS guidelines. In general, employers should expect new hires and seasonal workers to be subject to these rules from the date of hire and should plan on the following:
- Collect required vaccination data, including acceptable proof of vaccination, on the first day the employee reports to the worksite
- Collect a COVID-19 test on the first day the employee reports to the worksite
- If a nonexempt employee is unvaccinated, provide material on vaccination safety and effectiveness, a copy of the employer’s COVID-19 policy and information on when and how the employee can get vaccinated. That employee should then follow face covering and testing protocols until they are vaccinated.
- If a nonexempt employee is partially vaccinated, provide material on vaccination safety and effectiveness, a copy of the employer’s COVID-19 policy and information on when and how the employee can complete their vaccination. That employee should then follow face covering and testing protocols until they are vaccinated.
- If an employee is exempt from vaccination for medical, disability or religious reasons, provide material on vaccination safety and effectiveness and a copy of the employer’s COVID-19 policy. That employee should then follow face covering and testing protocols for the duration of their employment or until rules under the OSHA ETS change.
- If an employee falls into one of the OSHA ETS exemption categories, including working exclusively at home, working exclusively outdoors or working exclusively alone at a remote site, provide material on vaccination safety and effectiveness and a copy of the employer’s COVID-19 policy. Employees in these categories are not subject to testing and face covering requirements.
Rules for Face Coverings
Do employers need to pay for face coverings?
Employers are not required to pay for face coverings for employees, customers, contractors or any other individuals who enter a shared workplace, unless they are subject to personal protective equipment rules that apply in healthcare settings or rules that pertain to respirators and facemasks in some workplaces.
Do all employees need to wear face coverings at all times?
Under the OSHA ETS, face coverings are mandated for unvaccinated employees. Unvaccinated employees may remove face coverings only in the following siutuations:
- While eating or drinking in designated break or dining spaces.
- While alone in a rooom with floor to ceiling windows and a closed door. A face covering must be used if anyone else enters the room.
- While passing security checkpoints that use facial recognition.
- In extremely limited circumstances where the face must be visible for safety.
Can employers mandate face coverings for nonemployees, such as customers and vendors?
Employers are free to mandate face coverings for any non-employees who enter a workplace, including customers, vendors and state and local officials. Employers must also allow any employee who wishes to wear a mask to do so, regardless of their vaccination status.
Is there a minimum standard for face coverings?
The OSHA ETS does not mandate a specific brand, type or material for face coverings. Under these regulations, face coverings are considered source control to prevent infected workers from spreading SARS-CoV-2 by sneezing, coughing, talking, singing or breathing.
A face covering must fit snugly over the mouth and nostrils and be made of at least two layers of breathable, woven material. No light should penetrate the face covering when it is held up to a light source. It should be secured to the head with ear loops or elastics or ties that go behind the head. There should be no tears, holes or signs of wear in face coverings.
Thin coverings, such as those used in gaiters, may be doubled to meet OSHA regulations. A face covering may include translucent plastic over the mouth if the ability to see the wearer’s mouth is critical to workplace communications or safety.
N95 and KN95 respirators can be used in place of face coverings. Surgical masks and other personal protective equipment that provides source control and meets the basic guidance for face coverings can also be used in place of face coverings.
Can employers prevent vaccinated workers from wearing face coverings?
Employers cannot prevent any worker from wearing a face covering, regardless of vaccination status. Employers also cannot ban customers, vendors, officials and visitors from wearing masks in a workplace subject to the ETS guidance.
Employee Responsibilities Under the OSHA COVID-19 ETS
Are Vaccines Mandated for All Employees Under the OSHA ETS?
The OSHA ETS mandates vaccines for all employees who work for public and private employers with 100 employees or more, with the following exceptions:
- Employees who cannot be vaccinated due to a medical condition
- Employees who cannot currently be vaccinated because of current medical treatments but who may be vaccinated when those treatments end
- Employees who are in a protected class by virtue of a disability or sincerely held religious belief
Under the ETS, these employees are subject to a mask mandate and testing at least once every 7 days. These employees may need to pay for testing and masks themselves, as the OSHA ETS does not require employers to pay for masks or testing.
What Proof of Vaccination Do Employees Need to Provide?
The following proof of vaccination may be given:
- A record of vaccination form a pharmacy or healthcare provider
- A COVID-19 Vaccination Record Card
- A coopy of medical records documenting vaccination
- A copy of immunization records from a public health, state or tribal immunization information system
- Any other official documentation that shows the type of vaccine administered, the date(s) it was received and the name of the clinic site or healthcare professional who administered the vaccine
- A signed and dated employee attestation, only if the employee is unable to provide any other acceptable proof of vaccination
What Are the Penalties for Misrepresenting Vaccination Status?
Any employee who knowingly and willfully submits false information, including false attestations or forged documents, can be criminally charged and may face a fine of up to $10,000 or 6 months in prison per offense.
Are Any Employees Exempt?
There are five groups of employees who are exempt from the mandates in the OSHA ETS:
- Healthcare workers covered under the OSHA Healthcare ETS issued in June 2021.
- State and municipal employees in Idaho, which does not have a State Plan on file with OSHA and who are not subject to OSHA rules. State and municipal employees in Utah and Wyoming are subject to the OSHA ETS unless they are already covered by the Healthcare ETS or fall under one of the other exempt groups.
- Employees who work exclusively from home. No regular time spent in a workplace setting other than the home is permitted.
- Employees who work exclusively outdoors. No regular time spent indoors or in transit is permitted. Occasional time indoors, including the use of indoor bathroom facilities and sheltered break areas, is permitted.
- Employees who work by themselves in spaces with no other occupants.
These employees still count toward the 100-employee threshold for the OSHA ETS, but they are not subject to the vaccine or face covering and testing mandates.
Are face coverings and testing mandated by the OSHA ETS?
Any employee at a business with more than 100 employees total who is not part of an exempt group must do one of the following:
Get fully vaccinated
Wear a face covering and submit to testing at least once per week
Employers can require more frequent testing, and they are not required to reimburse for testing or provide time off, either paid or unpaid, for testing.
Face coverings must be made from at least two layers of breathable material that prevent light from shining through when held up to a light source, secured by ties, ear loops or elastic cords that go behind the head. Face coverings must fully cover the nostrils and mouth and cannot have holes or excessive wear.
In some workplaces, a respirator, face shield or facemask may be used in place of a face covering, as long as it provides similar source control for respiratory droplets.
Face coverings are not mandated for employees whose mouths must be visibile for safety purposes, or in situations where wearing a face covering would create a risk of injury.
What Happens If I Receive a Positive Test Result?
An employee who tests positive for COVID-19 or is diagnosed with COVID-19 by a healthcare professional must notify their employer immediately. You will not be allowed to return to work until you meet the following Return to Work Criteria:
- At least 10 days have passed since symptoms first appeared
- You have not had a fever for 24 hours, without using a fever reducer
- Other COVID-19 symptoms are improving, excluding the loss of taste and smell
You may also return to work if you have received a recommendation from a licensed healthcare provider.
Your employer is not required to provide paid sick leave while you are isolating with COVID-19. You may be allowed to use accured sick days or paid time off while you recover, depending on the laws in the state where you work.