Pursuant to President Biden’s promise to use his Administration’s regulatory authority to increase the number of vaccinated American workers, on November 5, 2021, the Occupational Safety and Health Administration (OSHA) published its Emergency Temporary Standard (ETS) requiring COVID-19 vaccination among employers employing 100 or more workers. The ETS also provides these employers the option of implementing routine COVID-19 testing in lieu of a mandate for unvaccinated employees.
If the ETS survives recent expedited legal contests (more on this below), its features must be implemented by covered employers very soon. By December 5, 2021, covered employers will need to have ascertained the vaccination status of all of their employees and have adopted a COVID-19 vaccination policy (details below). OSHA’s requirement that employees be vaccinated or subject to weekly testing goes into effect on January 4, 2022. To be considered vaccinated by this deadline, an employee will have either had to have received a single-dose vaccine or the second dose of a two-dose vaccine. In other words, there is no requirement that an employee have received their final dose two weeks before January 4, 2022. Likewise, covered employers have until January 4, 2022 to adopt testing practices if the employer does not adopt a hardline vaccination mandate.
Because OSHA has investigatory and enforcement powers, and because the requirements set forth in the ETS are likely to become the applicable standard of care in any negligence or wrongful death lawsuit, it is crucial that covered employers take steps now to come into compliance.
Here are 10 of the central features of the ETS:
As mentioned above, once handed down, the ETS faced immediate legal challenges in the federal courts nationwide. At present, the United States Court of Appeals for the Fifth Circuit has temporarily stayed the ETS mandate. These challenges are generally being heard on an expedited basis.
It bears emphasizing that employers who plan on mandating vaccinations and testing regardless will not suffer from wasted efforts if the ETS is ultimately struck down. Likewise, if OSHA’s mandate is upheld, then these employers will be on track for the rapidly approaching first compliance deadline this December 5th. Those employers that plan to enforce a mandate only if the ETS is upheld should nevertheless begin contingency planning to ensure they meet the approaching deadlines depending on the outcomes of these challenges to ETS enforceability.
— If you have further questions or concerns or would like assistance in evaluating your business’s potential exposure under this new law , please contact: