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.
In addition to the general OSHA COVID-19 ETS information below, we have created three in-depth guides to the regulations:
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.