There are several upcoming events and deadlines that are relevant to the Occupational Safety and Health Administration’s (“OSHA”) “large employer” emergency temporary standard (the “ETS”), which require businesses with 100 or more employees to adopt a policy that either (1) requires all employees to be vaccinated, unless otherwise entitled to a medical, disability, or religious accommodation, or (2) requires all unvaccinated employees to be masked while in the workplace and be tested every seven days. A summary of the specific requirements of the ETS can be found here.
Upcoming ETS Events
Friday, January 7, 2022: The United States Supreme Court will hear oral argument on whether to reinstitute the 5th Circuit’s stay on implementation of the ETS or affirm the 6th Circuit’s decision to permit the ETS to go forward. The Supreme Court’s decision on this issue is expected to come shortly after oral argument and may effectively resolve the question of whether the ETS will be implemented or not.
Friday, January 7, 2022: There are reports that OSHA has instructed states with State OSHA plans (such as Alaska, Oregon, and Washington) that they have until January 7, 2022 to inform OSHA whether they are going to adopt the ETS or propose a different standard that is at least as protective as the ETS.
Monday, January 10, 2022: OSHA has stated that January 10th is the deadline for businesses subject to the ETS to be in compliance with the non-testing requirements of the ETS, such as the masking, record retention, and employee notification requirements.
Monday, January 24, 2022: There are reports that OSHA has instructed states with State OSHA Plans (such as Alaska, Oregon and Washington) that they have until January 24, 2022 to implement the ETS or a different standard that is at least as protective as the ETS.
Monday, February 9, 2022: OSHA has stated that February 9th is the deadline for businesses subject to the ETS to be in compliance with the testing requirements of the ETS.
Businesses in States with State OSHA Plans
There are twenty six states that have State OSHA plans. Those states include Alaska, California, Oregon, Washington, Virginia, South Carolina, and others. A listing of all State OSHA plans is located here. The following discussion assumes that that the Supreme Court will uphold the ETS. That is only an assumption, however, for planning purposes. It is possible that the Supreme Court will uphold the 5th Circuit’s stay of implementation of the ETS. We will not know until the Supreme Court issues its decision after oral argument on January 7, 2022.
Some States (such as Alaska) are challenging the ETS in federal court. Those States that are challenging the ETS may not implement the ETS by OSHA’s January 24, 2022 deadline. If a State does not implement the ETS by OSHA’s deadline, OSHA may begin the process to revoke that State’s OSHA plan. Upon revocation of the State’s OSHA plan, federal OSHA would assume jurisdiction over private businesses and would implement the ETS. However, that process may take some time, and could involve further litigation if a State challenges OSHA’s attempt to revoke their state OSHA plan. Accordingly, for those states with a State OSHA plan, businesses should consider identifying whether the State has announced it is going to implement the ETS or if it is challenging the ETS.
The positions vary for the states where many of our clients operate. Alaska is challenging the ETS. Washington has not published a statement yet. Oregon is monitoring the situation and updates can be found here. California has adopted a version of its own ETS.
Businesses in States without a State OSHA Plan.
For those businesses with operations in one of the 24 states without an OSHA plan, businesses might consider preparing for the implementation of the ETS, including developing the necessary policies and plans to implement the ETS the non-testing requirements by January 10, 2022 and the testing requirements by February 9, 2022, if the Supreme Court upholds the ETS.
OSHA’s ETS states that federal contractors subject to the federal contractor vaccine mandate do not have to comply with the OSHA ETS. However, the federal contractor vaccine mandate is currently the subject of a nationwide stay, and the legal viability of the mandate is being challenged in the 11th Circuit. Accordingly, if the federal contractor vaccine mandate is struck down, those federal contractors with 100 or more employees may have to comply with the OSHA ETS. Moreover, while the litigation over the federal contractor vaccine mandate is being litigated, state and federal OSHA agencies may take the position that federal contractors with 100 or more employees must comply with the OSHA ETS (or its State OSHA Plan analogue).
Accordingly, federal contractors should also begin planning for a potential need to comply with the OSHA ETS, including identifying whether they are subject to the ETS (i.e. do you have 100 or more employees).