October 14, 2021

OSHA's COVID-19 Vaccine, Testing Rule Is in Review

OSHA has submitted the initial text of its emergency temporary standard (ETS) to require COVID-19 vaccination or testing for workers of larger employers to the Office of Management and Budget (OMB) for review, a Department of Labor spokesperson confirmed on Oct. 12. This step in the regulatory review process was reported by news outlets such as Bloomberg Law and discussed during a press briefing by White House Press Secretary Jen Psaki the next day.

The ETS will now be reviewed by the Office of Information and Regulatory Affairs (OIRA), the statutory part of OMB that conducts regulatory reviews. When questioned by a reporter on Oct. 13, Psaki did not comment on the timeline for the review process.

“Although [OIRA] can sometimes take months to conclude its analysis, President Joe Biden called for an expedited process, which could mean the office will give its OK in as little as a day,” according to Bloomberg Law.

Once the OIRA review process is complete and the rule finalized, it will be published in the Federal Register. According to the OSHA website, once the agency publishes the ETS in the Federal Register, it serves as a proposed permanent standard subject to the usual rulemaking process except that a final ruling should be made within six months. The validity of an emergency temporary standard may be challenged in an appropriate U.S. Court of Appeals.

President Biden’s COVID-19 Action Plan, released in September, directs OSHA to issue an ETS that would require all employers with 100 or more employees to ensure that their workers are vaccinated against the disease or submit to weekly testing. The administration expects the new rule to affect more than 80 million workers in the private sector. Through the ETS, larger employers will also be required to provide paid time off for workers to get vaccinated or to recover from any side effects post-vaccination.