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OSHA Finally Drops 100+ Employee “Emergency” Temporary Standard

  • By: Katie Lipp
    Published: November 5, 2021

LIPP LAW LEGAL UPDATE: The ETS has been placed on hold by the 5th Circuit. Read the update here.


On November 4, 2021, the federal Occupational Safety and Health Administration (OSHA) finally released its long-awaited emergency temporary standard titled COVID-19 Vaccination and Testing (the “ETS”). The ETS will be effective on December 5, 2021, 30 days after the ETS’s release.

The ETS applies to employers with 100 or more employees, excluding those employers subject to separate sets of rules (i.e., federal contractors, federal subcontractors, healthcare services, and healthcare support services).

The main takeaways from the ETS are:

  • Employers With 100+ Employees Must Implement + Enforce a Written Vax or Testing Policy.
    • Beginning January 4, 2021, employers with 100+ employees must establish, implement, and a enforce a written mandatory vaccination policy, or establish a policy that requires proof of testing once per week for those who remain unvaccinated (or choose not to share their vaccination status) after this date. The regulation also reiterates that there should be exceptions to vaccination mandates for those with medical or religious exemptions.
    • If an employee is away from the workplace, testing can be done within 7 days of returning to the workplace.
  • It Applies for 6 Months Initially – Could be Made Permanent.
    • The ETS Applies for 6 months initially but could be made permanent.
    • The implication that this rule could be made permanent has significant implications for employers and employees who are subjected to it, and also for the reach of the Executive branch. As outlined below, 22 states are challenging the ETS, and many consider the ETS to be beyond the scope of Presidential powers. Critics to the ETS note that lawmaking falls within the realm of Congress, not the President.
  • How to Calculate 100? Part-time Employees Are Included in the 100+ Employee Count.
    • In calculating whether an employer has 100 or more employees, OSHA has provided guidance that the count is from a company-wide level. As of November 5, 2021, part-time, fully remote, temporary, and seasonal employees are included in the count, but not independent contractors.
  • Rule Pushes Testing Costs on Workers.
    • Parting with legal guidance up until this date, the federal rule puts the testing cost on workers, and employers do not have to pay for testing costs. Employers should review applicable local and state laws that may require payment for testing.
    • The ETS does not allow workers to self-test. The ETS allows for the use of OTC self-tests that are observed by employers or authorized telehealth providers. This is a major hurdle for unvaccinated workers, requiring them to go to a testing center or pay for a telehealth provider, instead of going to CVS and getting a behind the counter test.
  • Exempts Remote + Outdoor Workers.
    • Remote workers who do not report to a workplace where other individuals are present, who work from home, or who work exclusively outdoors are exempt from the ETS.
  • Employers Must Determine + Verify Employee Vaccination Status.
    • Employers must determine and verify the vaccination status of each employee, and they are to maintain such information as medical records not to be disclosed unless required under federal laws.
  • Paid Leave for Vaccination Required.
    • Employers must provide up to four paid hours to employees to get vaccinated for the first time. Booster shots are not covered by the ETS.
  • Paid Sick Leave for Vaccine Side Effects Required.
    • Employees must receive sick leave for vaccine side effect recovery.
  • Different Treatment for Unvaxed Workers (Or Vaxed Workers that Choose Not to Share Private Health Information) Starting December 5, 2021.
    • Employers must ensure unvaccinated employees wear face coverings when indoors or when occupying a vehicle with another person for work purposes. This is effective December 5, 2021.

President Biden’s ETS was faced with immediate lawsuits from certain state leaders, and sparked announcements of planned lawsuits to come. The 22 states that are suing or plan to sue over the ETS include: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Kentucky, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming. Several state laws prohibit vaccination mandates, and the ETS purports to override those state laws.

Lipp Law Can Help Both Employees + Employers with COVID policies.

If you are an employer needing assistance with establishing policies and procedures compliant with COVID rules, or an employee needing assistance with a vaccination exemption, Lipp Law is available to help. Contact Lipp Law today.

Kathryn Megan Lipp

Katie dedicates her practice to employment separation guidance.
Based on her successful employment litigation practice...Read More