FAQs for Employers on the OSHA Vaccine Emergency Temporary Standard (ETS)

The Occupational Safety and Health Administration (OSHA) is issuing an emergency temporary standard (ETS) to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

This is the most significant development for employers during the entire pandemic: OSHA just released its emergency standard requiring employers with 100+ employees to either mandate the vaccine or test their employees for COVID-19 on a weekly basis. OSHA estimates the Emergency Temporary Standard, will affect more than 84 million workers.

The ETS will cover two-thirds of the nation’s private-sector workforce. In the 26 states and two territories with OSHA State Plans, the ETS will also cover public sector workers who are employed by state and local governments, including educators and school staff.

Federal workplace safety officials released the mandate-or-test workplace vaccine emergency rule, and employers are sure to have questions. The Emergency Temporary Standard (ETS) developed by the Occupational Safety and Health Administration (OSHA) will require all covered employers with 100 or more employees to either mandate their workforce receive the vaccination against COVID-19 or test them weekly to ensure they are not infected. Below is a comprehensive series of Frequently Asked Questions about the ETS – released with an effective date of November 5, 2021 – that will enable you to navigate this new requirement.

But wait a minute....there has been a lawsuit submitted. The Federal Appeals Court has temporarily blocked the Biden Vaccine Rule on November 6, 2021. One day after these rules were submitted for release.

A federal appeals court has temporarily blocked the Biden administration’s new rules that require many employers to ensure that their workers are vaccinated or testes weekly for Covid-19. A three-judge panel on the New Orleans Fifth U.S. Circuit Court of Appeals granted an emergency stay prohibiting enforcement of the rules for now, saying they raise “grave statutory and constitutional issues.”

The fifth Circuit said it would quickly consider whether to issue an injunction against the vaccine and testing requirements, ordering the Biden administration to file initial papers.

The rules issued by the Labor Department, apply to employers with at least 100 workers. Challengers are mounting in several different legal arguments against the requirements, including a claim that OSHA is improperly exercising powers that only be invoked by Congress.

The Fifth Circuit is one of the nations most conservative appeals courts. The three judges issued the ruling were appointed by Republican presidents.

Once again, OSHA steps around the Constitution. Joe don't worry, stay tuned we will keep you informed of what happens next!

The bigger question left in the wake of Saturday’s legal order: what should employers do now?

As of right now, an employer’s best course of action is to familiarize yourself with the requirements of the OSHA ETS and prepare to implement those requirements if the stay is lifted and the emergency rule is revived. After all, OSHA will most likely have little patience with non-compliant employers who claim they held off implementing the mandate-or-test rule while awaiting a final court ruling – and the agency has significant weapons at its disposal in the form of citations and penalties for those not following the ETS edicts.

We advise employers to spend the coming weeks preparing for the ETS as if it will take effect but waiting to implement its measures until the final judicial outcome is certain. The earliest effective date for any of the ETS requirements is December 5, which includes the need for you to have a vaccination policy and various other technical standards in place. You will be hard pressed to develop these materials overnight, so spend this interim limbo time efficiently and be prepared to comply should the ETS ultimately be upheld.

The Basics

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