Update: The 5th U.S. Circuit Court of Appeals issued a temporary stay on November 6 blocking the enforcement of the new OSHA Emergency Temporary Standard discussed below until the Court has considered potential statutory and constitutional issues with the regulation. OSHA has suspended activities related to implementing and enforcing the Emergency Temporary Standard pending future developments in the litigation.

The Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) requiring employers with a total of 100 or more employees to institute either a mandatory COVID-19 vaccination policy or a weekly testing and mask policy.

Specifically, the ETS requires that all employers of 100 or more employees must adopt a written policy that requires either:

1. all employees to be vaccinated (except for those with medical or religious exemptions who must wear masks and be tested weekly for COVID-19); or
2. all employees to be vaccinated or wear masks and test weekly for COVID-19, regardless of why they are unvaccinated.

The ETS also requires employers, among other things, to: 

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status;
• Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; and
• Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.

Employers must comply with most requirements by December 5, 2021 and with testing requirements by January 4, 2022.

In states with OSHA-approved state plans, such as Washington, employers will be covered by state occupational safety and health requirements.

The ETS does not apply to:

• Federal contractors/subcontractors;
• Healthcare industry employers already covered by other OSHA standards mandating vaccinations with no alternative for regular testing;
• Public employers in states without state plans; or
• Employees:
  • Who do not report to a workplace where other individuals are present;
  • While working from home; or
  • Who work exclusively outdoors.

If you have questions on the ETS or applicable state plans, or if you would like help instituting compliance measures, please feel free to contact:

A. Michael Edwards |  michael.edwards@hcmp.com  |  206.470.7642

Matthew H. Weger  |  matt.weger@hcmp.com  |  206.470.7650

Robert Van Cleve  |  robert.vancleve@hcmp.com  |  206.470.7636

Michael J. Mahoney  |  michael.mahoney@hcmp.com  |  206.470.7639