*Please note: On November 12, 2021, the U.S. Court of Appeals ordered OSHA to “take no steps to implement or enforce [the ETS]… until further court order.” As such, OSHA has suspended any rules for implementing and enforcing the ETS, pending legal challenges.

Since the OSHA Emergency Temporary Standard (ETS) was passed on November 5, 2021, many employers have had questions about how this impacts their company. Here are a few FAQs our clients have asked about this requirement.

Is my company required to comply with the ETS?

There are several requirements that must be met for your company to fall within jurisdiction for ETS compliance. To qualify, your company must:

COVID Vaccine Mandate ER FAQs

1. Be a private employer that is not a federal contractor or healthcare employer, both of which have their own COVID-19 workplace safety mandates.

2. Employ at least 100 workers nationwide (not just at your location).

  • Seasonal, temporary, and part-time employees are included in this count threshold.

3. Operate within a state that has federal OSHA jurisdiction.

  • States that have their own State OSHA plans have government agencies that enforce safety regulations and are required to adopt the federal ETS or alternative regulations/standards within 30 days. These states include Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. (FisherPhillips)
  • Companies that operate in multiple states will need to follow the standards and timeframes in each state.
What are the employer penalties for non-compliance with the ETS?

Your company may be fined by OSHA for up to $13,653 for each violation of the ETS. Any willful or repeated violations may be fined up to $136,532.

This means you could be fined by that amount for each facility, an area within a facility, or each employee within a facility. You could also face penalties for whistleblowers, retaliation, negligence, or other claims by employees.

Who pays for COVID-19 testing costs?

The ETS does not require nor prohibit employers from paying for testing costs. However, if you are considering having employees pay for their own testing, check with legal counsel first. There may be other laws, regulations, or collective bargaining agreements prohibiting you from doing so.

Is the ETS the final law?

While OSHA plans to enforce the ETS, they are still taking public comments until December 6, 2021, which could change the final standard.

What about the “stay” that is blocking the ETS?

Shortly after the ETS was published, the Fifth Circuit Court of Appeals issued a “stay” (temporary stop) of the ETS until courts could sufficiently review it. Although this means the outcome of the ETS is currently uncertain, things could change on a dime if the appeals court removes the stay, reenacting compliance deadlines outlined in the ETS. The Judicial Panel on Multidistrict Litigation (JPML) will decide on November 16 which Circuit Court (there are many now that have issued stays about the ETS) will move forward with the legal challenges.

As with any law, delaying compliance in hopes the ETS is overruled will not relieve you from penalties for non-compliance if the law is maintained. Your best course of action is to be familiar with the requirements and be prepared to implement them, as they won’t easily be thrown together in one night.

Why would I opt to create a mandatory vaccination policy instead of a vaccinate-OR-get-tested-weekly policy?

You may find the process of collecting and verifying weekly test results logistically cumbersome. To simplify your employer obligations for compliance with the ETS, you may want to consider a mandatory vaccination policy. Keep in mind, however, that you may receive employee push-back with a mandate.

What do I have to do to comply with the ETS?

Enforcement for the ETS begins December 5, 2021, which requires you to have taken all the steps mentioned here except implementing weekly testing and having employees fully vaccinated. (January 4, 2022, is the enforcement date for testing and vaccination compliance.) Get your vaccination policy in place and educate employees about what you currently know, acknowledging it could change.

Where do I find more information?

To see a comprehensive list of FAQs, visit OSHA or click any of the below-mentioned sources for more details.

Federal Register

Colin Thompson, Vice President - Human Resources

Author Colin Thompson, Vice President - Human Resources

Colin is a certified Senior Professional in Human Resources (SPHR) and manages internal human resources, in addition to servicing clients and overseeing our HR team. In his free time, you’ll find Colin at one of his four son’s ballgames or eating sushi.

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