You probably heard that last Friday, November 5, the occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) for Covid-19. This new standard, as the name implies, is a special type of rule that OSHA has the Authority to publish under certain very narrow circumstances. It applies to nearly every employer that has over 100 employees. We’ll try to document some of the things you need to know now and what you should be doing in the near future.
An Emergency Temporary Standard is an exception to the ‘normal’ rule or standard development process. Under the certain circumstances such as a grave danger, OSHA can issue rules that go into effect immediately instead of proposal, comment, response, issue process that normally takes place. These standards are meant to be ‘stop-gap’ to address an issue that is an immediate threat that would endanger a lot of workers if the normal rule making process were to take its normal 1-2 year time. When they issue an ETS they must begin the process of a permanent standard soon and that is normally a six-month sunset. From what I’ve read that can be extended or a new ETS issued at the end of six months.
Who is affected?
The rule went into effect on November 5 with the publication in the Federal Register. It was immediately challenged, more on that later. The rule is a General Industry rule (Section 1910) but also affects agriculture (Section 1928) under certain circumstances. As a purely agricultural employer (only have Sec. 1928 rules apply) and have fewer than 11 field workers AND do not provide housing, you are not covered by the rule. BUT if you have 11 or more workers doing field labor, OR provide housing for temporary workers (MSPA, or H-2A for example) then the rule applies… maybe
If you are covered by the rule (nearly everyone is) then you need to look at the number of employees you have in aggregate. There are legal terms for this but essentially if you have 100 employees across your company or sister companies that share ownership and control, in total, you will have to implement the programs outlined in the rule. If you’re not sure, consult an attorney.
So short answer.. If you have over 100 employees (with very, few exceptions) you will have to implement this rule. If you have fewer than 100 employees skip to the conclusions at the bottom.
How do you count employees? The rule states that if the employer exceeds 100 employees at any point during the effective time of the rule then they are in for the duration of the rule. Temporary, seasonal and part time employees are counted. The easy way to check is to see how many pay check you give out each week and if that’s close to 100 you will likely be covered (once salaried employees are counted).
What’s in the program?
Very short answer…If you have 100 or more employees, policies and procedures must be in place by Dec 4 and employees must be fully vaccinated or be under a weekly testing program by January 4. That gives you 30 days to put policies in place, provide notice and training to employees and begin to gather vaccination information. Fully vaccinated means two weeks after the final shot. All shots authorized by the FDA OR the WHO are okay. You have to pay for time off to get the vaccine and give (not pay for) the employee time to recover from side effects. If you’re going to allow non-vaccinated employees the option to test at least weekly, there are procedures you must follow. The employee cannot do a home test by themselves for example. Any work-related covid death or hospitalization must be reported no matter how long after the work-related illness began. There’s a lot more of this. It is a 17 page rule with about 475 pages of back up material.
As of this morning, the rule has already been challenged and a court in Louisiana has issued a temporary injunction. That injunction could be pulled at any time. There will be hundreds of law suits over this rule. I will make no prediction if it will stand or be taken down but OSHA is determined to go forward with a rule. They will go through the normal procedure if nothing else. Even if you’re not a large employer, it looks like some form of Covid rule will be with us going forward. There will be a LOT more information about this coming out and this will not be the last article about this rule you will see here. As one lawyer I follow said, this is one of the most important rules OSHA may have ever issued. It will be a landmark.
There is a LOT more to this rule but above is the gist of it. The Federal Register notice was nearly 500 pages. If you are not covered (one of the ag exceptions or less than 100 employees) does this mean you should ignore this? NO. The General Duty Clause is still in play. If you are doing NOTHING to stop the spread of covid in the workplace, and you end up with an OSHA inspection you can likely expect questions about Covid and if you have a work related death or hospitalization from covid it wouldn’t be unreasonable to expect a citation. For the last two gin seasons we’ve discussed things you should be doing to stop or reduce the spread of Covid-19. Go to the CDC website for more details but you should have some procedures such as where people that work together live, carpool arrangements, staggered shifts etc to help keep any outbreak to a minimum. You should also have a plan for when someone gets sick or tells you they’ve been exposed… what are you going to do? Have a plan for covid and you should be okay.
Give me or Andy a call if you have questions.