OSHA Vaccination ETS

OSHA has just issued an emergency temporary standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. The ETS establishes binding requirements to protect unvaccinated employees of large employers (100 or more employees from the risk of contracting COVID-19 in the workplace.

Although this ETS takes effect immediately, it also serves as a proposal under Section 6(b) of the OSH Act for a final standard. Accordingly, OSHA seeks comment on all aspects of this ETS and how it would be adopted.

Who’s Covered

The ETS generally applies to employers in all workplaces that are under OSHA’s authority and jurisdiction, including industries as diverse as manufacturing, retail, delivery services, warehouses, meatpacking, agriculture, construction, logging, maritime, and healthcare. Within these industries, all employers that have a total of at least 100 employees firm- or corporate-wide, at any time the ETS is in effect, are covered.

Who’s Not Covered

This standard does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in settings where employees provide healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (29 CFR 1910.502).

The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees working from home, or employees working exclusively outdoors.

Effective Dates

The ETS is effective immediately upon publication in 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

Appellate Court Stay

On Friday, November 12, the U.S. Court of Appeals for the Fifth Circuit issued an order staying enforcement and implementation of the OSHA COVID-19 ETS. The order was issued after an expedited briefing and in response to a petition filed by various employers, states, religious groups, and individual citizens seeking a temporary stay of the ETS pending judicial review to determine if a permanent injunction of the ETS should issue. While the Fifth Circuit will not necessarily be the final word on the matter, the ruling signals that at least one federal appellate court has made a preliminary determination that the challenge to the ETS will likely succeed on the merits. Pending review, the ruling effectively nullifies the ETS as OSHA is barred from both enforcing and implementing it.

To view the full ETS, click here.