On November 5, the Occupational Safety and Health Administration (OSHA) published in the Federal Register its emergency temporary standard (ETS) that will require private sector employers with 100 or more workers to ensure that employees are vaccinated against Covid-19. If employers do not want to dismiss employees who are not vaccinated, they have the option to allow those unvaccinated employees to submit a weekly negative COVID test and follow masking requirements when working indoors

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay the ETS. The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

Should the courts uphold the ETS, employers with 100 or more workers will need to develop a program to verify the vaccination status of all employees and maintain records of vaccination status and test results. Employers can provide a testing option for those employees who do not wish to be vaccinated. However, employers do not have to allow a testing option under the ETS. 

Employers will need to have workers fully vaccinated by January 4, 2022. This same timeline applies to employers covered by the previously announced government contractor vaccination mandate. For workers who are not vaccinated, the testing requirement begins on January 5, 2022. Prior to that date, unvaccinated workers do not need to be tested.

The 100 or more employee threshold is determined per company, not per location and covers all U.S. employees. Part-time employees do count towards the 100 employee threshold, however independent contractors do not count towards the 100 employee threshold. Employees working from home do count towards the 100 employee threshold, but they do not have to be vaccinated or tested if they are not coming into contact with other employees or customers.

For the U.S. Chamber of Commerce fact sheet on the ETS, click here.

To view the U.S. Chamber of Commerce Webinar on the ETS, click here.

Should you have any questions, please contact Hilary Chebra, Manager of Government Affairs at hchebra@chambersnj.com.