OSHA ETS Briefing Dials in on Testing Good Faith Efforts

Today, OSHA convened a stakeholder briefing on its COVID-19 vaccine-or-test emergency temporary standard (ETS) for employers with 100 or more employees. In large part the briefing provided a 101-style walk through of the sections of the ETS. A pre-recording of this briefing is available here and copy of the slides are accessible here

Among the hand full of questions answered following the prepared remarks, OSHA fielded questions that have come up in discussions with various RILA communities, including:

  • How would any testing shortages impact enforcement of testing requirements? Presenters responded that OSHA would look for documentation of an employer’s good faith efforts to obtain tests and exercise enforcement discretion where an employer could not obtain an adequate supply of test kits for any given period of time.

  • Could an employee apply for a religious exemption from weekly testing? Yes, it’s possible. If the worker’s religious belief if “sincerely held” they may be entitled to an accommodation from weekly testing. It is the responsibility of the employer to make the assessment as to whether the religious belief is sincerely held. OSHA directs employers to consult with the EOCC for guidance on making that determination.

OSHA presenters reiterated that litigation is ongoing and they are aware of at least thirteen emergency application for a stay to the U.S. Supreme Court. OSHA has until December 30 to respond to those applications.

OSHA also directed attendees to review the extensive FAQs on its site, which it expects to update with additional FAQs in “the coming days.”  Among the expected updates, are additional guidance developed in coordination with the DOL Wage and Hour division on the FLSA, including testing cost payment scenarios that OSHA/DOL has received questions on since issuing the ETS. 

RILA will continue tracking the ETS status and latest developments. Please contact Susan Kirsch, VP Regulatory Affairs and/or Evan Armstrong, VP Workforce with any questions.

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