OSHA Employer Temporary Standard on Vaccination and Testing: Readiness Guide for Pennsylvania Employers

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The Commonwealth of Pennsylvania has prepared a readiness guide to help employers with 100 or more employees be prepared to implement the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) for COVID-19 vaccination or testing.

OSHA provides two compliance options:

1.  Develop, implement, and enforce a mandatory COVID-19 vaccination policy

2.  Adopt a policy requiring employees to either get vaccinated or elect to undergo regular

COVID-19 testing and wear a face covering at work in lieu of vaccination

The ETS was published in the Federal Register on November 5, 2021. The text of the rule can be found on the Federal Register website, and OSHA’s website contains additional information, including FAQs.

On November 6, 2021, the Fifth Circuit Court of Appeals granted an emergency motion to stay enforcement of the ETS, temporarily suspending the ETS pending further judicial review. On November 15, 2021, the U.S. Department of Labor acknowledged the Fifth Circuit’s Order and announced that OSHA is suspending its implementation and enforcement of the ETS pending further litigation. On December 17, 2021, the Sixth Circuit Court dissolved the Fifth Circuit Court’s stay of the ETS. On December 18, 2021, OSHA released guidance that it will resume implementation of the ETS.

Per OSHA: “OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” Litigation may be ongoing. Employers should refer to the OSHA website for updated guidance.

Employers must choose how to ensure compliance. Federal guidance states that employers can mandate vaccinations for staff. To support vaccinations, the Pennsylvania Department of Health (PADOH) will continue to oversee a Commonwealth-wide vaccination program, and employers are invited to refer any staff seeking vaccination to one of hundreds of clinics in the Commonwealth providing vaccines. To find the closest vaccine provider, please follow this link. PADOH will not provide any customized support to private employers seeking to operationalize a testing program.

You can access the complete “Readiness Guide for Pennsylvania Employers” for detailed information about:

·      Vaccinating employees

·      Testing employees

·      Support from the Pennsylvania Department of Health

·      List of U.S. employers with vaccine mandates (non-exhaustive)

·      NAAT and Antigen Test Differences to Consider When Planning for Diagnostic or Screening Use

Thank you for your assistance in helping protect your employees and our nation from COVID-19.

Sincerely,

Jennifer Berrier, Secretary, PA Department of Labor & Industry

and

Keara Klinepeter, Acting Secretary, PA Department of Health