An OSHA Emergency Temporary Standard (ETS), published in the November 5 Federal Register, aims to protect unvaccinated employees of large employers (with 100 or more employees corporate-wide) 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.
OSHA believes the ETS is necessary to protect unvaccinated workers from the risk of contracting COVID–19 at work. Vaccination is a simple measure that can largely prevent a significant number of deaths and illnesses, in OSHA’s view, and the ETS further protects workers who remain unvaccinated through required regular testing, use of face coverings, and removal of all infected employees from the workplace.
Employers must comply by January 4 with the required COVID-19 testing for employees who are not fully vaccinated. Other provisions of the standard must be complied with by December 6, including the requirement to remove from the workplace any employee that receives a positive COVID-19 test or that is diagnosed with COVID-19 by a healthcare provider.
The Biden Administrations asserts that the ETS preempts state and local regulations, including measures adopted in some states to discourage or outlaw mandatory vaccination programs by employers. Florida, Texas, and other states have initiated legal actions intended to prevent implementation and enforcement of the OSHA standard. The Supreme Court has twice declined to review findings by lower courts that vaccination mandates were legal.
As an ETS, OSHA’s COVID-19 standard takes effect immediately, but it also serves as a proposed permanent standard on which the agency invites comments. The agency provides information and guidance for employers, including a helpful summary and recorded webinar, on its COVID-19 ETS webpage. ACMA members with questions about the COVID-19 ETS, or with experience relevant to OSHA’s adoption of the ETS as a permanent standard, should contact John Schweitzer.