The Department of Labor’s Occupational Safety and Health Administration (OHSA) announced an emergency temporary standard (ETS) requiring covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Employers can also adopt policies requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear face coverings at work.

“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” U.S. Labor Secretary Marty Walsh said in a news release announcing the ETS. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19.”

The ETS covers employers with 100 more employees—firm or companywide—and provides options for compliance. The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.

While the construction industry was exempt from a previous ETS issue in June, it will not be exempt from the current ETS. Exemptions to the rule apply to workers who do not report to a workplace where other individuals are present or who telework from home and workers who perform their work exclusively outdoors. The ETS contains specific language related to the construction industry and outdoor work, however.

“To qualify for this exception [related to outdoor work], the employee’s work must truly occur ‘outdoors,’ which would not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite,” according to the ETS.

The ETS specifies that if an employee works primarily outdoors but routinely occupies vehicles with other employees as part of work duties, those employees are not covered by the outdoor work exemption.

The standard also addresses multi-employer worksites, such as construction sites, and how to determine which workers are covered by an employer. According to the ETS, on multi-employer sites, each company represented (the host employer, general contractor, subcontractors, etc.) would only need to count its own employees and the host employer and general contractor would not need to count the total number of workers at each site. However, an employer must count the total number of workers it employs, regardless of where they report for work on a particular day. For example, if a contractor has more than 100 employees spread across multiple construction sites, the employer must adhere to the guidelines of the ETS even if it does not have 100 or more employers present at any one worksite.

The ETS requires employers to determine the vaccination status of each employee, maintain records of each employee’s vaccination status, and require employees to provide prompt notice when they test positive for COVID-19. Workers who are not fully vaccinated must be tested for the virus at least weekly and wear face coverings when indoors or occupying a vehicle with another person for work purposes. The ETS does not require employers to pay for testing or the pay for face coverings for employees.

The ETS is effective immediately upon its publication in the Federal Register. The deadline for companies to comply with most of the provisions of the ETS is Jan. 4, 2022.