On November 4, 2021, the Occupational Safety and Health Administration’s (OSHA) released the prepublished version of its expected new emergency temporary standard (ETS). The OSHA ETS (interim final rule; request for comments) was
published in the Federal Register on November 5, 2021. The OSHA ETS requires employers with 100 or more employees to mandate that all their employees be “fully” vaccinated against COVID-19 or produce a negative test result on at least a weekly basis before coming to work. The ETS goes into effect January 4, 2022 (60 days after the date of publication in the federal register). Under the ETS, employees of covered employers must be in complaince by January 4, 2022. The ETS is available here. An OSHA Q&A/Press Release/FAQ describing the ETS is available here.
The 100-employee trigger for coverage of the ETS applies on a company-wide basis and is not based upon the number of employees at a particular site.
In order to be considered “fully” vaccinated the ETS requires the following:
“Fully vaccinated” means (i) a person’s status 2 weeks after completing primary vaccination with a COVID-19 vaccine with, if applicable, at least the minimum recommended interval between doses in accordance with the approval, authorization, or listing that is: (A) approved or authorized for emergency use by the FDA; (B) listed for emergency use by the World Health Organization (WHO); or (C) administered as part of a clinical trial at U.S. site, if the recipient is documented to have of primary vaccination with the “active” (not placebo) COVID-19 vaccine candidate, for which vaccine efficacy has been independently confirmed (e.g., by a data and safety monitoring board) or if the clinical trial participant from the U.S. sites had received a COVID-19 vaccine that is neither approved nor authorized for use by the FDA but is listed for emergency use by the WHO. Currently authorized FDA vaccines include Janssen (Johnson & Johnson), which is a single-dose primary vaccination, and Pfizer-BioNTech and Moderna, which have a two-dose primary vaccination series. This definition is consistent with the CDC definition of fully vaccinated (CDC, September 16, 2021). The definition of “fully vaccinated” also means a person’s status 2 weeks after receiving the second dose of any combination of two doses of a COVID-19 vaccine that is approved or authorized by the FDA or listed as a two-dose series by the WHO (i.e., heterologous primary series of such vaccines, receiving doses of different COVID-19 vaccines as part of one primary series). The second dose of the series must not be received earlier than 17 days (21 days with a 4-day grace period) after the first dose (CDC, October 15, 2021). OSHA has included this because people who have received a heterologous primary vaccination series (including mixing of mRNA, adenoviral, and mRNA plus adenoviral products) are considered by the CDC to also meet this definition. OSHA considers a vaccination series that meets the definition in subparagraph (ii) to be a primary vaccination for purposes of the requirements to support vaccination in paragraph (f). The employer obligations under the ETS differ based on whether each employee is fully vaccinated. This definition is relevant to the definition of mandatory vaccination policy, in this paragraph (c), as well as the provisions under paragraph (d) regarding written vaccination policy requirements and relevant procedures for workers who are fully vaccinated. Paragraph (e)(2) also addresses fully vaccinated employees, including the determination of vaccination status and acceptable forms of proof. Lastly, the definition provides clarity with regard to the requirements of paragraphs (g) and (i) respectively, which contain requirements for regular COVID-19 testing and face covering use among employees who are not fully vaccinated. Paragraph (e) requires employers to determine each employee’s vaccination status, including whether they are fully or partially vaccinated. By “partially vaccinated,” OSHA means someone who has started a primary vaccination series but not completed it (e.g., has received one dose of a two-dose series) or has completed their primary vaccination and two weeks have not elapsed since the last dose of the primary vaccination.
Employers with 100 or more workers are required to give those workers who need to be vaccinated paid time off to do so and to recover if any employees are under the weather post-vaccination.
Testing and Exemptions From Vaccination
Under the ETS, employers may offer weekly testing as an option to accommodate those employees who cannot be or refuse to be vaccinated, including those who have underlying medical conditions or religious exemptions.
State Plans and Preemption
The ETS preempts and replaces any state or local requirement that forbids an employer from mandating vaccination. States may adopt protective measures that are as or more effective that the OSHA ETS. (For instance, a State could permit employers to omit the weekly testing option altogether except for employees who have underlying medical conditions or sincerely held religious beliefs that forbid vaccination).
We expect immediate legal challenges to the ETS, including whether OSHA has met the legal standard for issuing an ETS and whether OSHA can preempt state laws that prohibit employer vaccine mandates. It is possible that a Court may issue an injunction temporarily halting implementation of the ETS until after the Court has the opportunity to review the ETS.
We will be providing a more detailed analysis of the ETS shortly and will continue to monitor this evolving situation.