On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) issued the much-awaited Emergency Temporary Standard (“ETS”) mandating that workers at U.S. companies with 100 or more employees either receive a COVID-19 vaccine or undergo weekly or more frequent COVID-19 testing. Simultaneously, the Centers for Medicare and Medicaid Services have issued a similar rule requiring vaccination of all healthcare workers at facilities that participate in Medicare and Medicaid.
As widely reported in the press, several state attorneys general and other interested parties plan to file multiple lawsuits challenging the enforceability of the ETS, including whether OSHA’s bypassing of the normal rulemaking process was legal. OSHA has not had much success in the past issuing emergency standards, with the courts rejecting five of the six emergency standards OSHA has issued in the last fifty years. OSHA will have to answer two important questions in any court action: whether employees are subject to a grave danger necessitating the need to bypass the normal rulemaking process and why millions of employees currently working for employers with less than 100 employees are not also facing this grave danger. We should know in the coming weeks whether a court will issue an injunction preventing OSHA from enforcing this ETS.
The OSHA rule is set to take effect Friday, November 5, 2021. Absent a court enjoining OSHA from enforcing the ETS, by December 5, 2021, all affected employers must have developed a compliance program and must require unvaccinated workers to wear masks in the workplace. Employees who are not fully vaccinated by January 4, 2022, must submit to weekly COVID-19 tests beginning at that time.
Under OSHA’s emergency rule, employers must provide both paid time off for employees to get vaccinated and paid sick leave for them to recover from any side effects of the vaccine. COVID-19 vaccines remain free in the United States. OSHA did not take a position regarding who will bear the cost of this weekly testing. Therefore, applicable state laws will govern who must bear the cost of testing. Many states require employers to cover the cost of medical examinations and courts will likely consider a COVID-19 test to be such an examination.
OSHA has also provided templates for both a vaccination policy and a testing policy in lieu of vaccination. We stand ready to assist clients with choosing what works best for their workplaces.
OSHA’s emergency rule may remain in place for up to six months, at which time it must be replaced by a permanent regulation. Several state attorneys general have vowed to sue to block the rule. Employers should remain flexible and expect rapid developments and changing guidance in this area.
In our sixtieth year, The Bennett Law Firm has been a leader on how to stay ahead of changes in policy. For questions or for more information on this issue, please contact Peter Bennett (pbennett@