Clarification on OSHA ETS Reporting Requirements

There has been recent confusion regarding the reporting requirements of the two different Emergency Temporary Standards (ETSs) issued by the Occupational Safety and Health Administration (OSHA). Employers covered by OSHA’s Healthcare ETS, which was issued in June 2021, are required to report work-related COVID-19 fatalities to OSHA within eight hours of employer knowledge and work-related COVID-19 in-patient hospitalizations within 24 hours. Thus, all settings covered by the Healthcare ETS, including health care providers such as nursing homes, enhanced assisted living residences (EALRs), and assisted living programs (ALPs), must comply with this reporting obligation. Click here for more information regarding the Healthcare ETS requirements.

Members have understandably been confused regarding this and the newer OSHA ETS, which was recently issued and addresses COVID-19 vaccination and testing obligations for private employers with 100 or more employees. This is separate and distinct from the Healthcare ETS. It is notable that the COVID-19 Vaccination and Testing ETS does not apply to employees in settings covered by the Healthcare ETS (OSHA Frequently Asked Questions, No. 2.J.).

Thus, if the setting is covered by the Healthcare ETS, the employer is not required to also comply with the COVID-19 Vaccination and Testing ETS for that particular setting. In that circumstance, state or Centers for Medicare and Medicaid Services (CMS) vaccination mandates will likely otherwise apply, however. If the setting is not covered by the Healthcare ETS, the COVID-19 Vaccination and Testing ETS applies and must be followed, for private employers with 100 or more employees.

Members should note that the COVID-19 Vaccination and Testing ETS is presently being challenged in federal court, and one federal court has issued a temporary stay of enforcement of the ETS. We will keep members apprised of developments regarding this issue.

Contact: Diane Darbyshire, ddarbyshire@leadingageny.org, 518-867-8828