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OSHA Releases ETS Requiring Large Employers to Mandate Vaccines or Provide Weekly Testing

November 4, 2021

By: Donald D. Berner and Morgan E. Geffre

UPDATE (11/08/2021): Court stays OSHA Temporary Standards for Large Employers - View the issue alert here

Foulston has produced a series of issue alerts as we continue to monitor the evolving COVID-19 situation and provide additional guidance. Please find all updates and our latest resources available here

Today the Occupational Safety and Health Administration (“OSHA”) released its Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to ensure all employees to either be (1) fully vaccinated, or (2) produce a negative test result on at least a weekly basis before coming to work. 

Employers must implement vaccine policies, leave, and masking requirements by December 5, 2021, and must implement testing requirements by January 4, 2022. Here are some of the ETS’s general requirements:

  • The ETS applies to employers with 100 or more employees on a company-wide basis, regardless of the number of employees at a particular work site. 
  • Employers must develop and enforce either a (1) mandatory COVID-19 vaccination policy or (2) establish and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a mask.
  • The ETS provides protections for employees who are unable to be vaccinated due to a disability or a sincerely held religious belief
  • Employers can require employees to pay for the cost of weekly testing under certain circumstances. 
  • Employers must determine the vaccination status of each employee, obtain proof of vaccination, and maintain a roster of each employee’s vaccination status.
  • Employers must provide paid time off for employees to receive the vaccine and recover from any side effects from the vaccine.

Similar to the previous healthcare ETS, this ETS will expire in six months. An ETS is valid until superseded by a permanent standard, which OSHA must promulgate within six months of publishing the ETS. If OSHA wishes to extend the obligations, OSHA must promulgate a permanent standard before May 5, 2022.

This ETS is likely to face legal challenges now that it has been issued. 

As a reminder, the Biden Administration’s COVID-19 Action Plan also included vaccine requirements for federal contractors and healthcare facilities. The Centers for Medicare & Medicaid Services (“CMS”) also released an interim final rule with comment today outlining the staff vaccination requirements for Medicare- and Medicaid-certified providers and suppliers to participate in Medicare and Medicaid programs. Please stay tuned for an issue alert related to CMS’ interim final rule.

Importantly, the OSHA ETS does not apply to employers that must already comply with the federal contractor vaccine mandates or to employers who are currently complying with the requirements of the previous Healthcare ETS.

Contact legal counsel to prepare a comprehensive action plan to ensure your workforce is prepared to comply with the OSHA ETS before December 5, 2021. 

For More Information

If you have questions or want more information regarding the requirements for large employers to mandate vaccines or provide weekly testing, contact your legal counsel. If you do not have regular counsel for such matters, Foulston Siefkin LLP would welcome the opportunity to work with you to meet your specific business needs. For more information, contact Don Berner at 316.291.9738 or dberner@foulston.com or Morgan Geffre at 316.291.9577 or mgeffre@foulston.com. For more information on the firm, please visit our website at www.foulston.com.

Established in 1919, Foulston is the largest Kansas-based law firm. With offices in Wichita, Kansas City, and Topeka, Foulston provides a full range of legal services to clients in the areas of administrative & regulatory; antitrust & trade regulation; appellate law; banking & financial services; business & corporate; construction; creditors’ rights & bankruptcy; e-commerce; education & public entity; elder law; emerging small business; employee benefits & ERISA; employment & labor; energy; environmental; ERISA litigation; estate planning & probate; family business enterprise; franchise & distribution; government investigations & white collar defense; governmental liability; government relations & public policy; healthcare; immigration; insurance regulatory; intellectual property; litigation & disputes; long-term care; mediation/dispute resolution; mergers & acquisitions; Native American law; oil, gas & minerals; OSHA; privacy & data security; private equity & venture capital; product liability; professional malpractice; real estate; securities & corporate finance; supply chain management; tax exempt organizations; taxation; trade secret & noncompete litigation; water rights; and wind & solar energy.

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This update has been prepared by Foulston Siefkin LLP for informational purposes only. It is not a legal opinion; it does not provide legal advice for any purpose; and it neither creates nor constitutes evidence of an attorney-client relationship.