We all knew it was coming: On November 4, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued its anticipated Emergency Temporary Standard (ETS) that President Biden first announced back on September 9 as part of his “Path Out of the Pandemic” action plan. The ETS requires employers with 100 or more employees to ensure that their workers either have their final vaccination dose by January 4, 2022 or be tested for COVID-19 on at least a weekly basis if not fully vaccinated by that date.
States with their own state OSHA plans, such as California, must, within 30 days, adopt the ETS or standards that are “at least as effective” as the ETS. Employers are free to implement more protective COVID-19 mandates, including mandatory vaccination requirements at some work locations, and “vaccinate or test” at others, but the ETS is expressly intended to supersede any state or other laws interfering with the vaccine, testing and masking requirements of the ETS.
Significantly, OSHA’s ETS does not apply to federal contractor workplaces that are covered by Executive Order 14042 and the Safer Federal Workforce Task Force Guidance (collectively, the “federal contractor mandate”), which impose mandatory vaccination for the broadly defined category of “covered contractor employees.” We previously discussed the federal contractor mandate in detail here and here.
Now for the twist: In conjunction with OSHA’s ETS, the White House announced that it was aligning the vaccination deadline of the federal contractor mandate with the ETS vaccination deadline. As a result, January 18, 2022 is now the date by which federal contractors must ensure that covered employees are fully vaccinated. For some contractors and subcontractors subject to the federal contractor vaccination mandate, the extension from the previous December 8, 2021 deadline provides much needed additional time to comply.
Other key provisions of OSHA’s ETS include:
OSHA has provided guidance, policy templates, and FAQs on their website. Attorneys at RJO will continue to monitor and report on these evolving requirements. If you have questions about the latest requirements, please contact one of the RJO attorneys with whom you regularly work, or the authors of this article.
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