On Friday, November 5, 2021, OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) was issued (with most of the requirements to go into effect on December 5) and, almost immediately, it faced a number of legal challenges in various courts. The first court to make a ruling was the U.S. Circuit Court of Appeals for the Fifth Circuit, which issued an order on November 6 staying the implementation of the ETS until further notice. The Court ordered the parties to submit further briefing on November 8 and 9; the ordered stay is not a final ruling on the validity of the ETS, but will halt its implementation at least for the time being. Other legal challenges might follow; further confusing the issue of where and when the ETS will go in to effect.

The ETS will require millions of workers to be vaccinated or undergo weekly testing and masking while in the workplace. However, the ETS will not apply to those employers already subject to the following:

• COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors;

• OSHA Emergency Temporary Standard for healthcare employers; or

• Centers for Medicare & Medicaid Services (CMS) Health Care Staff Vaccination rule.

For employers subject to the CMS rule, further information on that rule is available here from our colleagues at the Health Law Diagnosis blog.

According to OSHA, the purpose of the ETS is to establish minimum vaccination, testing, and face covering requirements to “address the grave danger of COVID-19 in the workplace.” OSHA intends for the ETS to override inconsistent state and local requirements relating to these issues, including those that prohibit or limit employers’ authority to require vaccination, face coverings, or testing.

Generally speaking, the ETS applies to employers with a total of 100 or more employees. For purposes of this determination, all employees are counted across all of the company’s locations in the United States. This includes those employees that are part-time, seasonal, work from home, do not report to a workplace, or work exclusively outdoors. Such employers must develop, implement, and enforce either a mandatory vaccination policy, subject to limited exemptions, or allow unvaccinated employees to test regularly and be subject to a mask policy.

If the ETS survives the pending and anticipated legal challenges, covered employers will have to weigh their options under the ETS and decide whether to allow for the testing and masking exemption. Regardless of which option a company takes, covered employers will need to comply with the other recordkeeping, reporting, and training requirements in the ETS, as well as make certain accommodations for employees receiving the vaccine (e.g., paid time off). The ETS contemplates covered employers having 30 days to comply with most of the ETS and 60 days to comply with the testing requirements. With the ETS’s effectiveness already stayed, it is unclear where the compliance dates will fall.