November 4, 2021

OSHA Releases Emergency Temporary Standard on COVID-19, Effective Nov. 5

An OSHA emergency temporary standard, or ETS, published on Nov. 5 requires employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Employees who choose to remain unvaccinated must undergo regular testing for COVID-19 and wear a face covering at work. Employers are also required to provide paid time off for workers to get vaccinated and paid leave for workers suffering from side effects of the vaccines. Employers are not required to pay for testing but must maintain records of each test result while the ETS is in effect.

The rule grants employers covered by the ETS until Dec. 6 to require unvaccinated employees to wear face coverings, and until Jan. 4 to implement mandatory vaccination or weekly testing. Days after publication of the ETS, the Fifth Circuit Court of Appeals temporarily blocked the rule.

An OSHA press release announcing the ETS states that it covers approximately 84 million workers, or about two thirds of the nation’s private sector workforce. The agency estimates that the rule will save more than 6,500 workers’ lives and prevent more than 250,000 hospitalizations over six months.

Some stakeholders have questioned why the ETS covers only employers with 100 or more employees. The rule specifies that OSHA is confident that these employers can meet the standard’s requirements and is seeking to prevent “undue disruptions” these requirements may have caused for smaller employers.

An FAQ about the ETS on the OSHA website clarifies that firms with multiple locations should count workers at all facilities toward the 100-employee threshold. Part-time employees, employees who work from home, and seasonal employees also count toward the threshold, while independent contractors do not.

Employers covered by the ETS may implement a tiered vaccination mandate that requires only a subset of its workforce—for example, employees who interact with the public—to be vaccinated or submit to regular testing. Such a tiered mandate could exclude employees who work from home.

Any employee, regardless of vaccination status, who receives a positive COVID-19 test must be removed from the workplace immediately. The standard does not require employers to provide paid time off to employees who have been removed because of a positive test.

Employers who choose to provide unvaccinated employees with respirators in lieu of face coverings must comply with OSHA’s “mini respiratory protection program” as described in a separate ETS promulgated in June.

The Occupational Safety and Health Act grants OSHA the authority to issue emergency temporary standards if the agency determines that employees face “grave danger” from exposures at work and that an emergency standard is necessary to protect workers from these exposures. The rule indicates that OSHA has determined that a grave danger exists from the COVID-19 pandemic and that the OSH Act’s general duty clause, which requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees, is inadequate to protect workers.

When the agency publishes an 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.

The full text of the rule is available from the Federal Register. In addition to the FAQ, other compliance materials are available from the OSHA website.

This article was updated on Nov. 13, 2021, to include information about deadlines in the ETS and the action by the Fifth Circuit Court of Appeals to stay the rule.