There’s just no end to the COVID news over the last few days!

 This morning, the Occupational Safety and Health Administration (“OSHA”) released its long-awaited COVID-19 Emergency Temporary Standard (“ETS”). This ETS is in response to President Biden’s call for employers with 100 or more employees to require their employees to be vaccinated against COVID-19 or wear a mask and submit to COVID-19 testing at least weekly.

 In addition, the White House announced the following:

• All unvaccinated workers must begin wearing masks by December 5, 2021, and provide proof of a negative COVID-19 test at least weekly beginning January 4, 2022.
• The deadline for federal contractors to comply with similar provisions of the President’s Executive Order (“EO”) 14042 has been pushed out to January 4, 2022.
• Employers are not required to pay for or provide COVID-19 tests for their employees unless required under state or local laws or as part of a collective bargaining agreement.

With this announcement, my team and I recommend that covered employers review their COVID-19 workplace policies – i.e., NY employers’ NYS HERO Act, Section 1, workplace safety plans – and make the appropriate updates by the deadlines set forth in the ETS. Further, we recommend employers check with their health insurance plan providers to determine if the cost of mandated weekly testing is covered or if it will be an out-of-pocket expense for employees. Lastly, employers should prepare to have difficult conversations with employees about this often heated and emotional topic.   

Of course, there will be legal challenges to this federal mandate. However, as with so many other laws, rules, and regulations, employers should plan for full compliance and adjust those plans as necessary along the way.

This is a complex mandate with countless questions – many not yet thought of – and intersections with state and local laws and regulations. We’ll be doing our research over the coming days and weeks and will keep you updated along the way. So, buckle up and get ready for another bumpy ride!

Posted by Frank Cania, president of HR Compliance Experts LLC.

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Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

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