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Vax, or Test and Mask? OSHA Issues COVID-19 Emergency Temporary Standard (ETS) featured image

Vax, or Test and Mask? OSHA Issues COVID-19 Emergency Temporary Standard (ETS)

Vax by January 4, or test and mask—that’s the gist of the new U.S. Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS).

Here’s what roofers need to know.

The Emergency Temporary Standard was temporarily blocked by an Emergency Temporary Stay—As of this writing, the ETS was subject to a temporary emergency stay granted by the Fifth Circuit Court just one day after publication in the Federal Register.

The ETS does not apply to employees who work exclusively outdoors–If the ETS survives legal challenges, its requirements won’t apply to employees who work exclusively outdoors, an exemption particularly relevant to roofing workers.


with 100 or more employees at any time the ETS is in effect.

Employees—All except those who don’t report to a workplace where coworkers or customers are present, work from home, or work exclusively outdoors.

Preemption–The ETS is intended to preempt state, local, and collective bargaining requirements.

Vaccination Policy–employers must implement and enforce a written policy effective January 4, 2022, that either:

  • Mandates vaccination; OR
  • Requires all employees to:
    • Be fully vaccinated; or,
    • Submit to and report results of weekly testing and wear face coverings while indoors or in a vehicle with other workers.

Expensing— Employers aren’t required to provide or pay for tests unless employer payment is required by state law or collective bargaining agreement.

Paid time off—Employers must provide up to four hours of paid time off to receive each vaccine dose   and reasonable time and paid sick leave to recover from side effects.

Proof of vaccination—Acceptable official documents include vaccine cards or pharmacy/healthcare provider records.

Record keeping
–Employers must maintain test results as employee medical records including each employee’s vaccination status as well as a roster thereof.

Penalties–Employers who don’t comply with the requirements could face penalties of $13,653 per violation, while willful or repeated violations can be up to $136,532 per violation.

Training–Employers must provide employees with:

  • ETS requirements and employer compliance policy;
  • “Key Things to Know About COVID-19 Vaccines”, by the Centers for Disease Control;
  • Employee rights under applicable law, including but not limited to prohibition of retaliation for employee work-related illness reporting.

Minimum requirement–The ETS  establishes minimum requirements to address workplace COVID-19 risks via vaccination, testing, and masking. Thus, employers are free to agree with workers and their representatives to take additional measures including but not limited to more frequent testing.

Term–The ETS is intended to remain in effect until May 5, 2022 and may subsequently become the permanent standard absent enactment of an alternative before then.

on whether the ETS should become a permanent standard are due on December 5, 2021.

Cotney will continue to provide updates as this dynamic situation evolves.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.