On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released its Emergency Temporary Standard (“ETS”) regarding COVID-19 testing and vaccination. The ETS pre-empts any state or local requirements that limit an employer’s authority to require vaccination, face coverings, or COVID-19 testing. State and local regulations may go further than what the ETS requires but cannot undercut the ETS requirements.

The Bottom Line: with a few very discrete exceptions, private employers with over 100 employees, which includes both full time and part time W-2 employees whether on site or remote, must “develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”

These regulations were intended to go into effects as of November 4, 2021, however, OSHA is allowing employers until January 4, 2022, to enact a COVID-19 vaccination or testing requirement. To comply, employers essentially have two options: (1) develop and enforce a mandatory COVID-19 vaccination requirement or (2) require employees provide weekly negative covid tests and wear acceptable facemasks while working.

The ETS does not require employers to pay for the weekly COVID-19 testing, which clearly indicates OSHA’s preference for employers to implement a mandatory vaccination policy. The ETS also requires employees to remove employees that test positive for COVID 19 from the workplace and imposes reporting requirements for COVID 19 positive tests that result in death or hospitalization. Employers that fail to comply with the ETS may be subject to fines and penalties up to $13,653 per day they are not in compliance with OSHA’s ETS.

As of the date of this post, these regulations are currently stayed by federal court order. Covered employers should keep up to date on the status of the cases currently being litigated in the various federal courts.

For more information on this article and this topic, contact Christopher L. Harbin.