Larger State, Local Agencies Must Start Preparing to Require Vaccinations or Frequent COVID Testing

UPDATED Nov. 18, 2021

U.S. Department of Labor officials announced on Nov. 16, 2021, “OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in” lawsuits filed to block the rule.

As detailed below, the Emergency Temporary Standard is the Biden Administration rule that employers with workforces of 100 or more people require COVID-19 vaccinations or frequent testing. DOL officials explained their decision to hold off on enforcing the ETS by noting, “On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (‘ETS’). The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS ‘until further court order.’”

States’ challenges to the ETS have been consolidated in a multidistrict complaint being considered by the U.S. Court of Appeals for the Sixth Circuit. As litigation proceeds, the White House is urging larger employers to prepare for compliance.

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Despite a federal court challenge, OSHA rules requiring larger employers to require COVID-19vaccinations or frequent testing remain on track to take effect during the first week of January 2022. Vaccination

Details of the vaccine mandate for public and private sector organizations were announced on the morning of Nov. 4, 2021. A fact sheet explains that what the federal government is calling an Emergency Temporary Standard (ETS) applies to organization employing more than 100 people. Of particular note for members of IPMA-HR and their colleagues, the fact sheet explains

  • “In states with OSHA-approved State Plans, state- and local-government employers … will be covered by state occupational safety and health requirements.”
  • Fully remote employees and employees who work outside exclusively do not need to receive vaccines or undergo frequent testing.
  • U.S. government employees and employees of health care facilities that receive Medicaid and Medicare payments are subject to different rules.
  • The main requirements for covered employers are to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.”

Also, states and municipalities that have already mandated vaccines or tests for employees in certain settings will be allowed to continue enforcing their own rules separate from the federal mandate.

An OSHA website offers policy templates for employers to communicate with employers. These and other resources are provided in addition to updating guidance on workplace COVID-19 protections. The EEOC has separate guidance on ADA compliance and granting religious exemptions.

Several state attorneys general have sued the Biden administration to block implementation of the ETS, and a federal appeals court issued a temporary stay. The Biden Administration was expected to file a response opposing the stay on, Monday Nov. 8, 2021. Since litigation can take time and certain outcomes are not guaranteed, it may make the most sense for eligible employers to proceed as if the early January deadline for complying remains in place.

Finally, OSHA is seeking input on the ETS and will consider revising the final language of the rule. Go here to learn how you can share feedback.

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