On November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced its much anticipated Emergency Temporary Standard (“ETS”) regarding the COVID-19 Vaccination and Testing. An official version of the standard was published in the Federal Register on November 5, 2021. This article is meant to provide a useful summary of the timelines and requirements of the standard and the anticipated legal challenges it currently faces or will face. At least for the time being, the ETS is effective for a period of six months from publication--the OSH Act treats the enactment of such temporary standards as a call to finalize a permanent rule within 6 months.
Key deadlines include:
- December 5, 2021: Employers must: (1) collect each employee’s vaccination status; (2) require unvaccinated employees to wear masks; (3) educate employees on and promote the benefits of the COVID-19 vaccine; and (4) require employees who are COVID-19 positive to quarantine and set protocols for dealing with the same. (Note: these actions should begin as soon as possible, if not already in place).
- January 4, 2022: Employers must begin testing unvaccinated employees weekly. Note that employers are not required to pay for testing.
OSHA has stated, the purpose of the ETS is to “establish minimum vaccination, vaccination verification, face covering, quarantine, and testing requirements to address the grave danger of COVID-19 in the workplace.” Further, the ETS is intended to preempt any state or local requirement that bans or limits an employer’s authority to require vaccinations, face coverings, or testing. The preamble specifically states that “[t]o avoid ambiguity, OSHA has stated expressly that it intends this ETS to preempt all State and local workplace requirements that ‘relate’ to these issues, except pursuant to a State [OSHA] Plan.” (See State OSHA Plans Below.)
Am I a Covered Employer? The 100 Employee Threshold
The ETS applies to all employers with a total of 100 or more employees at any time the ETS is in effect. The following are examples of when employees would count towards this 100‑employee threshold:
- For a single corporate entity with multiple locations – All employees at all locations are counted to meet the 100-employee threshold.
- For a franchisor-franchisee relationship where each franchise location is independently owned and operated – The franchisor and franchisees are considered separate entities. The franchisee may count its employees separately from the franchisor.
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