On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued its Emergency Temporary Standard (ETS) regarding employee COVID-19 vaccination and testing.
The ETS applies to all employers that employ 100 or more employees, both private and public employers (with limited exceptions). The ETS does not apply to employees that do not report to a workplace where other individuals are present, employees working from home, or employees who exclusively work outdoors.
Employers subject to the ETS must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to elect either to get vaccinated or to undergo at least weekly COVID-19 testing and wear a face covering at work.
An important component for employers is that they are not required to pay for any costs associated with COVID-19 testing for employees who chose testing over getting vaccinated. An exception is where the employer has agreed to pay or is under an obligation to pay pursuant to a collective bargaining agreement.
OSHA has said that companies that fail to comply with the regulations could face penalties of up to $14,000 per violation.
OSHA's ETS becomes effective immediately upon publication in the Federal Register. To comply, employers must ensure provisions are addressed in the workplace by the following dates:
- 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination dose(s).
- 60 days after publication: Testing for employees who have not received all doses required for a primary vaccination (e.g., Pfizer, Moderna, Johnson & Johnson).
Importantly, the new rule indicates it is intended to preempt state law except in highly limited circumstances:
"This ETS preempts States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a Federally-approved State Plan. In particular, OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer's authority to require vaccination, face covering, or testing. State and local requirements that prohibit employers from implementing employee vaccination mandates, or from requiring face coverings in workplaces, serve as a barrier to OSHA's implementation of this ETS, and to the protection of America's workforce from COVID-19.
To ensure that the ETS supplants the existing State and local vaccination bans and other requirements that could undercut its effectiveness, and to foreclose the possibility of future bans, OSHA clearly defined the issues addressed by the ETS in section 1910.501(a). OSHA's authority to preempt such State and local requirements comes from section 18 of OSH Act, and from general principles of conflict preemption. As the Supreme Court has explained, under section 18, once OSHA promulgates federal standards addressing an occupational safety and health issue, States may no longer regulate that issue except with OSHA's approval and the authority of a Federally-approved State Plan. Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88 (1992); see 29 U.S.C. 667."
A fact sheet for OSHA's ETS is provided for here: https://www.osha.gov/sites/default/files/publications/OSHA4161.pdf
A summary of OSHA's ETS is provided for here: https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf