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December 20, 2021

OSHA releases COVID-19 vaccination and testing emergency temporary standard


Rules Affect Employers with 100 or More Employees

On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit voted 2-1 to reinstate OSHA’s vaccination mandate requirement for employers with 100+ employees. In November, we published an OSHA COVID-19 ETS Guide addressing employer requirements, effective dates, and legal challenges to the vaccination mandate. Our updated guide now includes the following additional content:

  • The Sixth Circuit's reinstatement of OSHA’s COVID-19 emergency temporary standard and the subsequent emergency motions filed with the U.S. Supreme Court;
  • OSHA's modified enforcement plan and dates;
  • Potential delays for OSHA-approved state plans; and
  • Mention of the Biden Administration's intent to support free at-home testing (guidance pending January 15th).

Originally Posted November 15th 2021:

The federal Occupational Safety and Health Administration (OSHA)[1] drafted its Emergency Temporary Standard for COVID-19 Vaccination and Testing (ETS) as an interim final rule published in the Federal Register on November 5, 2021. OSHA determined COVID-19 represents a grave danger to unvaccinated workers, requiring it to exercise its authority under the Occupational Safety & Health Act to implement workplace controls to protect them.

The ETS applies to private sector employers with 100 or more employees as well as certain state/local governmental employers with 100 or more employees in many states. All told, OSHA estimates the ETS will apply to two-thirds of the U.S. workforce. OSHA continues to encourage employers to implement additional controls beyond what the ETS requires.

Our Guide will address employer requirements under the ETS, its effective dates, and its legal challenges.

[1]OSHA is a part of the U.S. Department of Labor (DOL).