On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued its Emergency Temporary Standard (ETS) applicable to employers of 100 or more employees. The ETS requires employers to adopt a soft vaccine mandate obligating employees to either get vaccinated or to undergo regular COVID-19 testing and to wear a face covering at work. OSHA expressly states that the ETS pre-empts all state or local laws that are contrary to the ETS requirements.
The ETS was originally set to be effective on the date of publication in the Federal Register (November 5, 2021), with employees who work for covered employers having until January 4, 2022 to get vaccinated or otherwise comply with the testing/masking requirements. However, on Saturday, November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an emergency stay of the ETS. Hence, it is not currently enforceable with respect to workplaces located in the Fifth Circuit, which includes Louisiana, Mississippi, and Texas. The stay may also extend to other states across the country, although that is not clear as the court did not specify whether its decision applied nationwide or only to the states under its jurisdiction. Regardless, other challenges to the rule have been filed around the country. Notwithstanding this emergency stay, we advise that employers that would be subject to the rule still consider preparing for enforcement while this matter is being litigated. More details on the rule, if it withstands the legal challenges, are below.
The ETS places the compliance and recordkeeping burden squarely on employers, and it leaves employers to decide whether employees may opt for testing instead of vaccination. Under the ETS, employers may: (1) require all employees to be vaccinated (except those exempted for religious or medical reasons) l; or (2) require employees to be either vaccinated (except those exempted for religious or medical reasons) or wear a mask and be tested regularly. The ETS also leaves it up to employers to decide whether the costs of testing and masks will be covered by the employer or by the employees who opt for testing/masking instead of vaccination.
The new OSHA rule is not enforceable by the Mine Safety and Health Administration (MSHA) and does not apply to mines regulated by MSHA. MSHA continues to encourage miners to get vaccinated, and mine operators and organized labor are doing the same. MSHA has publicly stated (as recently as last week) that it does not currently intend to issue an emergency standard on COVID.