Update: U.S. Supreme Court Blocks OSHA ETS 

Updated 1.14.22

The Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) regarding COVID vaccinations or weekly testing is on hold after a ruling by the U.S. Supreme Court. The court’s decision affects credit unions with 100 or more workers, which would have been required to make employees be vaccinated or tested weekly for COVID-19. In a 6-3 decision, the Supreme Court ruled OSHA exceeded its authority as COVID-19 is not a specific occupational risk. 

The United State Circuit Court for the Sixth Circuit is hearing the underlying case. In the meantime, private employers with 100 more workers are not under a federal mandate to require employees to get the COVID-19 vaccine or be tested regularly.   

In November 2021, Kansas legislators passed a new law that largely discourages employers from implementing COVID vaccination requirements or taking punitive measures against unvaccinated employees. Learn about this new law here (requires login).  

For context, please read the original article below, which was published on November 10, 2021.

OSHA's Emergency Temporary Standard takes full effect December 5

Published 11.10.21

The Occupational Safety and Health Administration (OSHA) released its Emergency Temporary Standard (ETS) mandating vaccinations or testing for employers with 100 or more employees. Under OSHA’s ETS, employers falling in this 100+ category are required to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

The ETS went into effect immediately upon publication in the Federal Register on November 5, 2021. All requirements of the ETS – other than testing for unvaccinated employees – are effective 30 days after publication, which is December 5, 2021.

A few key points on who and how this applies to the workplace:

  • The ETS requires covered employers (those with 100+ employees) to ensure all unvaccinated employees working in-person begin wearing masks by December 5, 2021.
  • Unvaccinated employees working in-person must provide a negative COVID-19 test on a weekly basis beginning January 4, 2022. 
  • This OSHA mandate does not apply to those employers that are covered by the federal contractor vaccine mandate.
  • The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or credit union members are present, employees while they are working from home, or employees who work exclusively outdoors.

Legal challenges to the ETS have been and will be made. Until these challenges are resolved, covered employers should prepare to follow the OSHA ETS.

For more information, read OSHA’s summary document of the ETS along with FAQs to help address frequently asked questions.