OSHA Updates its Testing-Related FAQs about the COVID-19 Vaccination, Testing, and Face Coverings ETS

By Conn Maciel Carey LLP’s COVID-19 Task Force

We wanted to share (hopefully) one last ETS update before Christmas.  As you know, when the Fifth Circuit issued its Stay of OSHA’s Vaccination, Testing, and Face Coverings Emergency Temporary Standard (ETS) in November, OSHA announced that it had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”  Essentially, OSHA said it was “pencils down” completely – no longer responding to email inquiries about interpretations of ETS terms, no longer speaking/presenting about the ETS, and importantly, no longer producing additional compliance guidance or FAQs.

With the Sixth Circuit lifting the Stay last week, however, OSHA immediately updated its website to reflect that the agency “can now once again implement this vital workplace health standard.”  OSHA went right back to work on compliance assistance, not just licking its chops to start enforcing the rule.  Indeed, in the last couple of days, OSHA has updated its FAQs on its Vaccination and Testing ETS webpage, including several about the confusing and challenging testing elements of the ETS (See Section 6 – and 6P. through 6.X. are the news testing FAQs).  Below are a few of the notable new testing-related FAQs that address questions we were fielding frequently (and thankfully answering correctly):

In particular, we thought it was good news to see the agency reflect that a single OTC COVID-19 test satisfies the weekly testing requirement of the ETS even for an OTC test that requires completion of more than one test per the Emergency Use Authorization, and that employers may remotely observe the self-administration of OTC tests via a live streaming video conference program (e.g., Zoom, Skype, or Microsoft Teams), as we had previously concluded.

And for what its worth, we wanted to make sure you saw Conn Maciel Carey’s extensive set of FAQs about the ETS.

Not Just Compliance Assistance:

Additionally, while the lifting of the Stay has allowed OSHA to get back to compliance assistance, it has also allowed OSHA to gear up its enforcement machine.  In a briefing about the ETS held by OSHA yesterday, we heard that, although OSHA will apply enforcement discretion until January 10th (for all provisions except the testing mandate) and February 9th (for the testing mandate), that does not mean employers should not be doing everything they can now to come into compliance.  Specifically, OSHA mentioned that it will look to factors for reasonable good faith efforts to come into compliance based on the original ETS deadlines – December 6th (for all provisions except the testing mandate) and January 4th (for the testing mandate).  For example, if a Compliance Safety and Health Officer (CSHO) were to show up today and see that the employer has done nothing or very little to come into compliance, enforcement may be considered.  On the other hand, if the employer appears to be taking significant steps towards compliance, the CSHO would consider following OSHA’s enforcement policy, and thus, enforcement should not start until those later dates.

Importantly, during the OSHA briefing, we also heard about how OSHA will be enforcing its ETS.  Specifically, OSHA mentioned that it is developing and will soon issue an enforcement directive for how its field staff is supposed to enforce this rule, and that the agency is updating its current COVID-19 National Emphasis Program (NEP) to account for the ETS.  OSHA also stated that it anticipates that most inspections will come from complaints and reports of hospitalizations and deaths.

We hope this helps, and, as always, let us know if you have any compliance questions about the ETS, or if we can help your organization come into compliance with the ETS.

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