Morris Manning & Martin, LLP

White Paper: Occupational Safety and Health Administration’s Emergency Temporary Standard

12.28.2021

NOTE: The Emergency Temporary Standard’s compliance deadlines are subject to change due to ongoing legal proceedings. For more details regarding the dates for compliance please click here.

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 will need to initially comply with most ETS requirements, and at a later date ensure all employees have received 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.” In the preamble of the ETS, OSHA explains unvaccinated employees face grave danger from exposure to COVID-19 in the workplace, and it is necessary to implement vaccination requirements and 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.

This white paper outlines and explains the ETS to help employers determine whether it or its employees are covered by the ETS, and the rights and obligations for those who are required to comply under the ETS. 

To learn more about the legal proceedings and current dates for compliance, please click here.  Please contact a member of the MMM Employment Team with any questions about the ETS or complying with its requirements. 

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