Client Alerts

Winter Is Coming – And So Is the Emergency Temporary Standard From OSHA

By: William D. Edwards, Stephanie E. Harley and Jonathan R. King

About: Employment & Labor

November 5, 2021 – Yesterday, the U.S. Department of Labor, through its Occupational and Safety Health Administration (OSHA), released a controversial emergency rule that details President Biden’s mandate that all medium and large employers require their workers to be fully inoculated against COVID-19 or get tested every week.

OSHA’s publication of the Emergency Temporary Standard (ETS) generally governs employers with 100 or more employees, requiring COVID-19 vaccination and/or weekly testing mandates. The ETS, which consists of 490 pages of guidance, takes effect today, and allows employers a 30-day window or until December 5, 2021 to comply with all requirements other than the testing requirement for employees who have not been fully vaccinated. The ETS gives employers an additional 30 days or until January 4, 2022 to comply with the testing requirement. According to the ETS, an employee is fully vaccinated if two weeks have passed since they received their second dose of a two dose vaccine (such as Pfizer-BioNTech or Moderna) or two weeks have passed since they received their single-dose vaccination (such as Janssen/Johnson & Johnson).    

Thus, by January 4, 2022, all employers with 100 or more employees must confirm that their employees have received their final vaccination dose. Thereafter, employers must require weekly testing for all unvaccinated employees. According to OSHA, the 100-employee threshold was instituted to focus on “companies that OSHA is confident will have sufficient administrative systems in place to comply quickly with the ETS.” Notwithstanding OSHA’s confidence, employers may be scrambling from the limited window of time allotted to bring their workplaces into compliance. Ulmer will be providing a comprehensive webinar on this issue in the next few weeks. For the time being, here is what employers need to know:

WHO IS COVERED?

The ETS generally applies to workplaces under OSHA’s authority and jurisdiction with at least 100 employees at any time the ETS is in effect. Although part-time employees should be counted towards the 100-employee threshold, independent contractors should not be included in any employee headcount. Importantly, the ETS does not apply to employees: (1) who do not report to a workplace where other individuals such as coworkers or customers are present; (2) while working from home; or (3) who work exclusively outdoors.

HOW DOES AN EMPLOYER INITIATE THE COMPLIANCE PROCESS?

Businesses with 100 or more employees should take the following steps to prepare for the December 5 deadline to comply with the ETS.


ARE THERE ANY EXCEPTIONS TO ETS?


Several organizations/state governmental entities have already indicated that they intend to challenge the legality of the ETS, although whether these challenges will be successful is yet to be seen. Further information and clarification regarding the ETS is likely to develop over the coming days.

Ulmer’s Employment & Labor Practice Group will continue to stay on top of these developments and provide more in-depth analysis and guidance on the ETS and what it means for your business. Please reach out to our attorneys if you have any questions.

The information provided in this client alert speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. Please continue to follow these updates at ulmer.com. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this client alert, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact William D. Edwards at wdedwards@ulmer.com, Stephanie E. Harley at sharley@ulmer.com, or Jonathan R. King at jking@ulmer.com.