Top 10 Member Questions About the OSHA ETS

The Biden Administration released OSHA’s new Emergency Temporary Standard (ETS) to the public on Nov. 4, and while it provides clarity on many important details employers need to know to stay compliant, it’s still reasonably dense with technical information.

Many Members know the ETS describes:

  • Which employers are covered: All those with 100+ employees, even those spread over multiple locations
  • Which employees are covered: Remote and outdoor workers aren’t, but they are counted in the total employee count
  • Specific testing, vaccination and masking requirements that must be in place by employers

While the ETS is currently being challenged in the courts, Catapult recommends that you be proactive with your preparations in the event employers must comply. Remember: Catapult HR Advisors are here to support Members by chat, phone and virtual events!

Last week during our recorded Members-only event, our experts were joined by Josh Dobson, NC Department of Labor Commissioner, as we discussed the ETS and how it relates to North Carolina Employers.

During the event, several questions kept popping up in the chat. We’ve compiled them into the top 10 list of Member questions we received about ETS requirements to set the record straight.

Q: Does a company policy have to choose between two policies: either mandate employee vaccinations with termination as a non-compliance repercussion OR subject every employee to regular testing, regardless of vaccination status?
A: “The ETS states that employers have the option of choosing,” says Linda Hunter, Catapult HR Advisor. “Either choose to require that all employees be vaccinated except for valid medical and religious accommodations, or require that unvaccinated employees test weekly if they’re going to be in the office.”

Q: For employers with fewer than 100 employees who visit client sites, would the mandate require the smaller employer’s employees to be vaccinated if the client is subject to the mandate?
A: The OSHA ETS would not cover the smaller employer in this case, but keep in mind that a client does have the right to require anyone working at their sites to be vaccinated.

Q: Does the Jan. 4 deadline mean that unvaccinated testing begins that week or the week before?
A: If the employee is not vaccinated or hasn’t received their first vaccine dose by Jan. 4, then testing would need to begin by that date, not the week before.

Q: How does this mandate impact independent operating companies with separate EIN’s with common management?
A: “A Standard Franchisee/Franchisor operation are counted separately from one another,” notes HR Advisor Renee Watkins. “Otherwise, two or more related entities may be regarded as a single employer for this purpose if they handle safety matters as one company.”

Q: Does the time used by an employee to take a COVID test for our business need to be compensated?
A: Although we are waiting for additional DOL guidance, Catapult believes you should pay for any time you’re requiring. If you fall under this ETS, an argument could be made that you, the employer, require the testing.

Q: If a company with 100 employees or more is a federal contractor and falls under the federal contractor mandate, would they also be subject to this mandate?
A: “No,” says Renee. “Executive order 14042 would take precedence and Member companies should follow those guidelines. OSHA has specifically exempted employers who are under the executive order from also needing to comply with the ETS.”

Q: If our company operates in multiple states, but there are fewer than 100 employees in the other state, would those employees fall under this ETS?
A: “The OSHA ETS requires that all locations be added together when determining the 100 employee count threshold regardless of which state they are in,” says Renee.

Q: If we have 100 employees, but 50 employees work full-time remotely, do I need to ask all 100 for their vaccination status?
A: No, you do not need to ask full-time remote EEs for their vaccination status or require weekly testing unless they come into the office at any point during the ETS compliance dates.

Q: If you have temporary employees working at your worksite, how is it recommended to manage weekly unvaccinated testing requirements?
A: “This varies greatly depending on the industry, work schedules, workforce composition and logistics,” says HR Advisor Stephanie Dillon. “Give us a call to discuss your business’ requirements!”

Q: What is the look-back period for the 100-employee count?
A: The ETS started on Nov. 4 and is in effect for six months. If your company hits 100 employees at any point during that time, you are covered by the ETS for the rest of the period.

Need more support to prepare? Read the full summary of the ETS to get a complete picture of the considerations your organization needs to think through as you determine how to comply. Members can also call an HR Advisor for further clarification tailored to your business!

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