OSHA Releases Vaccination and Testing ETS
On Nov. 5, OSHA released its Emergency Temporary Standard (ETS) language for COVID-19 vaccination and testing (Vax/Test). The ETS and all its accompanying information including fact sheets and implementation policy templates that can be used by employers, are accessible on OSHA’s dedicated Vax/Test ETS website. Regardless of legal challenges to the ETS, NAPA’s goal is to provide members with clear and concise information regarding compliance with the 150-page rule. As the Dec 5. and Jan. 4 compliance deadlines get closer, NAPA envisions providing additional information to assist members in their compliance efforts.
NAPA initial summary of the ETS:
- Applicability: private employers that fall under OSHA jurisdiction with 100 or more employees. OSHA provides additional clarification on who is considered an ‘employee’; NAPA will provide additional clarity later.
- The ETS preempts state and local workplace laws unless issued by a federally-approved state OSHA, meaning individual states will not be able to enact legislation overriding OSHA’s ETS.
- There is indication that OSHA may reduce the employee size applicability after the agency’s official review of public comments, which are due 5 Dec. 2021. NAPA intends to submit comments within our construction industry coalition.
- Compliance dates: by Dec. 5, the majority of programmatic requirements must be implemented. By Jan. 4, employers must start complying with the testing requirements for employees who are not vaccinated. The ETS is effective immediately and will remain in effect for six months.
- The ETS requires employers to develop, implement, and enforce either – a mandatory COVID-19 vaccination policy – or – a COVID-19 weekly testing program for employees that do not get vaccinated which includes the wearing of face coverings.
- The ETS requires employers to determine and maintain rosters of each employee’s vaccination status.
- Exceptions: while the overall requirements of the ETS still apply to a ‘covered’ employer (e.g., one with 100 or more employees), such requirements do not apply to:
- Employees who do not report to a workplace where other individuals are present
- Employees while working from home
- Employees who work exclusively outdoors
- Clarification on ‘exclusively outdoors’: While OSHA does not absolutely define the term, the agency does provide some clarification (page 115 of the .PDF, Page 61516 of the Federal Register) which we’ve posted here.
- At this time, it appears that employees who satisfy or meet OSHA’s clarification for working ‘exclusively outdoors’ will be exempt from ETS requirements for vaccination or weekly testing.
- Employees must be provided up to 4 hours of paid-time-off to get vaccinated, and reasonable time / paid sick leave to recover.
- Employers are not required to pay for the cost of COVID-19 testing.
While NAPA is pleased to see that OSHA listened to our advocacy efforts and included an exemption for outdoor workers, we realize there is a tremendous burden on our members to implement programmatic systems ensuring compliance with the ETS. Over the next few weeks, NAPA will work with other stakeholders to help ease such burden. We are also aware of a number of new vendor-provided applications/systems to assist small businesses in meeting their Vas/Test compliance obligations. OSHA itself provides such program policies on their dedicated Vax/Test ETS website. For additional information, please contact Howard Marks.
Previous COVID-19 Directives
Is COVID "Work-Related" & Covered Under Insurance?
As companies start to see employees contract coronavirus, some have questioned whether and how to claim costs related to employee treatment with Workers Comp. NAPA’s understanding is that these types of industry claims are being denied. Some state's may allow such claims, work-related or not. Before submitting, companies should review whether a claim infers the illness is work-related and therefore recordable (or reportable) under OSHA's recordkeeping standard.
OSHA's May 19, 2020 guidance states: "COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation." Two months later, OSHA provided additional guidance on reporting COVID-19 hospitalizations but rescinded that guidance two weeks later. Ogletree Deakins, a national labor-related law firm, posted a flowchart to help employers visualize whether an employee’s COVID-19 case should be considered recordable or reportable.
NAPA Releases Employee Temperature Scanning Protocol
Download "COVID-19 Fit for Duty: Temperature Screening Protocol" to help understand the latest guidance. There are five key things to know:
- Temperature scans should be considered in conjunction with standardized health assessment questionnaire screening.
- Use a “touchless” or contactless thermometer if at all possible.
- Ensure that the screener is provided with and wearing appropriate PPE.
- Determine the best way to “record” the temperature scan information.
- Notify any employee that has an elevated temperature of 100.4 o F or higher and prohibit them from working for at least 14 days.
Construction Industry Updates Exposure Prevention, Preparedness & Response Plan
The plan outlines the steps every employer and employee can take to reduce the risk of exposure to COVID-19, including wearing proper personal protective equipment, adhering to cleaning and disinfecting procedures, and responding when a worker becomes sick.
OSHA Alert to Help Keep Construction Workers Safe
OSHA's Health & Safety Alert provides best practices to keep construction workers safe during the pandemic. One of the agency’s recommendations is to allow workers to wear face coverings. While the information provided in OSHA’s Alert is consistent with NAPA’s guidance, NAPA’s guidance, accessible here on NAPA’s COVID Health & Safety Webpage, provides additional and industry-specific guidance on protecting road construction workers.
Additional Best Practices for the Asphalt Industry (including PPE, e-ticketing, hazard mitigation strategies, disinfecting practices, and more)
OSHA Guidance Related to Coronavirus (COVID-19)