OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard

Porter Hedges LLP

Porter Hedges LLP

The following is an important update to our September 13, October 5, and October 15, 2021
alerts that discussed federal vaccine mandates.


On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) issued the long awaited Emergency Temporary Standard (“ETS”) which requires employers with 100 or more employees to ensure that their employees are either fully vaccinated or undergo weekly testing for COVID-19. 

Below are some of the key provisions of the ETS:

  • Employees must be fully vaccinated by January 4, 2022, or be subject to weekly COVID-19 testing
  • Employers are required to have a written vaccination policy
  • Employers do not have to pay for testing unless required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements
  • Employers must provide a reasonable amount of time to each employee for vaccination and reasonable time and paid sick leave to each employee for side effects experienced following vaccination
  • Employers must ensure that all unvaccinated employees are wearing masks with a few exceptions such as “when the employee is alone in a room with floor to ceiling walls and/or windows and a closed door, and for a limited time while an employee is eating or drinking at the workplace”
  • The ETS does not apply to employees working from home or employees who work exclusively outdoors
  • Employers must report to OSHA:
    • Each work-related COVID-19 fatality within eight hours of the employer learning about the fatality and
    • Each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization
  • The ETS acknowledges that employers will still have to consider requests for accommodations from employees with disabilities or sincerely held religious beliefs
  • It is stated that this ETS preempts all state and local workplace requirements that “relate” to issues addressed by the ETS unless these requirements are OSHA approved and under the authority of a Federally-approved State Plan

Guidance on Employer Coverage

The preamble to the ETS states that employers are covered for the entire term of the ETS once they reach the 100 employee threshold. In other words, if an employer has 101 employees on November 5, 2021, but in January 2022 loses three employees, falling below the 100 employee threshold, they will still be subject to the ETS during the entire term of the ETS. The ETS further explains that:

  • Franchisors and franchisees are considered separate entities;
  • Related entities are considered a single employer if they handle safety matters as one company;
  • On multi-employer worksites, each company represented only need count its own employees, not the total number of workers at each site; and
  • Staffing agency employees are considered employees of only the staffing agency, even if they work at a host employer location and the staffing agency and host employer would otherwise be considered joint employers by OSHA

Due to the complex nature of the ETS and the varying state rules which might be implicated, determining how to comply with the ETS and developing policies in response to the ETS can be challenging. 

We will continue to keep you informed as more information becomes available around this issue as well as any others related to the broader implications of the federal vaccine mandate.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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