Morris Manning & Martin, LLP

Whitepaper: Occupational Safety and Health Administration’s Emergency Temporary Standard

11.12.2021

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) published the highly-awaited Emergency Temporary Standard (ETS), which generally requires private employers with 100 or more employees to mandate vaccinations for all employees, or in lieu of a vaccination mandate, require unvaccinated employees to undergo weekly testing and wear facemasks when indoors. This standard, which will affect approximately two-thirds of all private-sector workers, “preempt[s] inconsistent state and local requirements relating to…the requirements that ban or limit employers’ authority to require vaccinations, face coverings, or testing, regardless of the number of employees.” While the ETS is effective immediately upon publication, employers have until December 6, 2021, to comply with most requirements, and employees have until January 4, 2022, to receive all requisite dose(s) of a vaccine or otherwise undergo weekly testing and wearing a face covering.

OSHA has the authority to issue a standard such as this when it “determines that employees are subject to a grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and the ETS is necessary to protect employees from such danger.” OSHA explains in the preamble of the ETS that unvaccinated employees face grave danger from exposure to COVID-19 in the workplace, and it is necessary to implement vaccination requirements, testing, and masking requirements to protect these employees. OSHA further assured the ETS is feasible—meaning it can be accomplished and is economically practical.

The ETS functions as a proposed rule and remains in effect for six months. While the rule is in effect, OSHA has the authority to revise or update the ETS in light of new information as it relates to the workforce and COVID-19.

To date, the Fifth Circuit Court of Appeals has issued a nationwide injunction prohibiting enforcement of the ETS. Other legal challenges are pending across the country. Given the cases pending across several circuit courts, it is likely these cases will be consolidated and heard by one federal court, which could ultimately be appealed to the United States Supreme Court. Overall, given the uncertainty of the outcome of these appeals, it is recommended that employers prepare for compliance with the ETS while monitoring these legal developments.

For an explanation of employees' rights, obligations, and compliance deadlines under the ETS and more guidance on determining whether your employees are covered, read our whitepaper. Please contact a member of the MMM Employment Team with any questions about the ETS or complying with its requirements. 

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