OSHA has issued a pre-publication emergency temporary standard (ETS) mandating that most employers with 100 or more employees generally require that those employees be either (1) fully vaccinated or (2) tested weekly for COVID-19. The ETS will take effect when published (likely tomorrow, November 5, 2021); however, legal challenges are expected and a court could put the ETS on temporary or permanent hold.

Once published, covered dealership employers will have 30 days to comply with most of the ETS, which will remain in effect for six months after publication. Compliance mandates include:

  • establishing, implementing and enforcing a written mandatory vaccination policy;
  • determining the vaccination status of each covered employee;
  • keeping vaccination records for all fully vaccinated covered employees;
  • providing paid time off for covered employees to get vaccinated and/or to recover from vaccination side effects;
  • requiring COVID-19 test results from unvaccinated covered employees every seven days. (There are exceptions to this requirement based on when covered employees report to a workplace. Dealer employers need not pay for required COVID-19 testing.);
  • taking specific actions when an employee tests positive for COVID-19;
  • requiring unvaccinated covered employees to wear face masks generally while indoors or in vehicles with other persons; and
  • allowing most covered employees to voluntarily wear face masks.

OSHA has issued detailed FAQs on the rule. Among other things, the FAQs clarifiy that:

  • For purposes of the 100-employee threshold, a single corporate entity with multiple locations must count all employees at those locations. For example, a dealership group with five stores with a total of at least 100 employees must comply with the ETS even if some of those dealerships have fewer than 100 employees. With regard to the issue of whether affiliated companies under common control (for example, a chain of dealerships owned by a single parent corporation) must be treated as one employer, the ETS notice states: [T]wo or more related entities may be regarded as a single employer … if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.
  • Part-time, off-site and remote employees count toward the 100-employee threshold.
  • Employees who work solely remotely are not covered by the vaccination/testing mandate, and employees who work solely outdoors are not covered by the mask mandate.
  • “Fully vaccinated” generally means an employee’s status two weeks after getting a single-dose or a two-dose course of COVID-19 vaccination.

NADA intends to issue additional compliance guidance on the OSHA ETS after it is published. In addition, NADA has and will continue to raise concerns on the ETS through the Coalition on Workplace Safety and the Small Business Administration’s Office of Advocacy. Lastly, NADA intends to support appropriate legal challenges to the ETS.

Questions on the ETS can be directed to [email protected].