OSHA ETS Requirements

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Summary of the Law and Procedural Background

On November 5, 2021, the Occupational Safety & Health Administration (OSHA) published its long-awaited Emergency Temporary Standards (OSHA ETS), intended to comprehensively address safety and health issues of COVID-19. The 450+ page new law mandates vaccines or weekly testing for employees of all employers in the country with at least 100 total employees.

The law’s purpose is to reduce the number of COVID-19 illnesses and deaths by requiring larger employers, who presumably have a greater ability to implement a policy such as this, to either mandate vaccines for all employees or adopt a hybrid practice of voluntary vaccination and mandatory weekly testing for those who choose not to be vaccinated. In addition, the law mandates face coverings for the unvaccinated and the removal of employees who test positive.

The OSHA website has a lot of useful materials including summary sheets and draft policies. However, when using template policies, particularly those based on federal law, it is imperative that it be reviewed and updated so it complies with California law. See https://www.osha.gov/coronavirus/ets2.

Multiple lawsuits were filed opposing the law, and it was stayed by the Fifth Circuit Court of Appeals pending appeal. The lawsuits were consolidated in the Sixth District, and the court lifted the stay on December 17. The opinion and order from the Sixth Circuit can be found here.

As expected, multiple parties, including 27 states, have filed emergency motions with the U.S. Supreme Court to block the ETS. Justice Kavanaugh oversees the Sixth Circuit, and we now await his decision as to whether the U.S. Supreme Court will intervene and hear the appeal and, if it does, whether it will stay the law pending resolution.

OSHA quickly announced that it will not issue citations for noncompliance before January 10, 2022. The agency also stated it will exercise its discretion and not issue citations for noncompliance with testing requirements under the ETS before February 9, 2022 if an employer is exercising reasonable, good faith efforts to come into compliance with the standard. See https://www.osha.gov/coronavirus/ets2