The President today announced via a Fact Sheet the awaited OSHA Emergency Temporary Standard (ETS) that applies to employers with 100 or more employees.  As anticipated the ETS requires either full vaccination for employees or weekly negative tests.  He also announced new vaccine requirements for health care workers issued by the Centers for Medicare & Medicaid Services (CMS).  An unpublished version of the ETS is available here.  It is expected to be published in the federal register November 5, 2021.  An unpublished version of the CMS rule is available here.

Importantly, for federal contractors, this announcement includes an extension of the Executive Order 14042 vaccine requirement to January 4, 2022, to correspond with the ETS and CMS deadlines.   The current deadline is December 8, 2021.

Streamlining Implementation and Setting One Deadline Across Different Vaccination Requirements: The rules released today ensure employers know which requirements apply to which workplaces. Federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces subject to the newly-released COVID-19 Vaccination and Testing ETS. To make it easy for all employers to comply with the requirements, the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS. Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022.

Significantly, the Fact Sheet also, somewhat cryptically, states that the ETS and CMS rule will not apply to “workplaces subject to the federal contractor requirement or CMS rule…”

And, the newly-released ETS will not be applied to workplaces subject to the federal contractor requirement or CMS rule, so employers will not have to track multiple vaccination requirements for the same employees.

Somewhat stating the obvious, this seems to confirm that if a federal contractor has a workplace subject to the federal contractor vaccine requirement, that requirement prevails and the contractor need not worry about the ETS or the CMS rule  – for that facility.  However, if a federal contractor also has a facility where no employee works on or in connection with a covered contract or subcontract – that is, therefore, not subject to the federal contractor requirements – that facility is subject to the ETS or the CMS rule, as applicable.

We will continue to provide relevant updates for federal contractors as we learn more.