Mary Madison, RN, RAC-CT, CDP
Clinical Consultant – Briggs Healthcare
In addition to the CMS Interim Final Ruleon the same subject, OSHA has also issued Interim Final Rule 2021-23643. This 490-page IFR will be published in tomorrow’s (11/5/2021) Federal Register and is effective on that date.
“The Occupational Safety and Health Administration (OSHA) is issuing an emergency temporary standard (ETS) to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead 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.
OSHA has also determined that an ETS is necessary to protect unvaccinated workers from the risk of contracting COVID-19 at work, as discussed in Need for the ETS (Section III.B. of this preamble). At the present time, workers are becoming seriously ill and dying as a result of occupational exposures to COVID-19, when a simple measure, vaccination, can largely prevent those deaths and illnesses. The ETS protects these workers through the most effective and efficient control available – vaccination – and further protects workers who remain unvaccinated through required regular testing, use of face coverings, and removal of all infected employees from the workplace. OSHA also concludes, based on its enforcement experience during the pandemic to date, that continued reliance on existing standards and regulations, the General Duty Clause of the OSH Act, 29 U.S.C. 654(a)(1), and workplace guidance, in lieu of an ETS, is not adequate to protect unvaccinated employees from the grave danger of being infected by, and suffering death or serious health consequences from, COVID-19.
This ETS applies to employers with a total of 100 or more employees at any time the standard is in effect. In light of the unique occupational safety and health dangers presented by COVID-19, and against the backdrop of the uncertain economic environment of a pandemic, OSHA is proceeding in a stepwise fashion in addressing the emergency this rule covers. OSHA is confident that employers with 100 or more employees have the administrative capacity to implement the standard’s requirements promptly, but is less confident that smaller employers can do so without undue disruption. OSHA needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination. Nonetheless, the agency is acting to protect workers now in adopting a standard that will reach two-thirds of all private-sector workers in the nation, including those working in the largest facilities, where the most deadly outbreaks of COVID-19 can occur.”
Requirements for determining employee vaccination status begin on page 247 of the IFR; employer support of vaccination begins at the bottom of page 248. COVID-19 testing for employees who are not fully vaccinated requirements are found at the top of page 257. Reporting COVID-19 fatalities and hospitalizations to OSHA is located on page 262; record keeping on page 266. Please review this IFR carefully – there’s a lot of regulation to consider and implement!
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