OSHA’s Vaccine & Mask Mandate: What You Need to Know

Published on November 12, 2021 by Nate Bortz

Jan 2022 Update

The legal journey for the Occupational Health and Safety Administration (OSHA) Emergency Temporary Standard (ETS) mandating that employees of large companies either get vaccinated or tested (explained in detail below) has been a bumpy one.

It was blocked just days after being released, reenacted in December, then just yesterday struck down by the Supreme Court.

In an unsigned majority opinion, the court said, “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.”

U.S. Secretary of Labor Marty Walsh Secretary responded to this opinion in an official statement released yesterday, saying he believes OSHA does have the Congressional authority to uphold the ETS because COVID presents a “grave danger” in the workplace.

The now defunct regulation would have applied to some 84 million private sector employees, according to NPR, and would have required all businesses with 100 or more workers to either be vaccinated, with the federal government footing the bill, or be tested weekly.

In a recent statement, President Biden said that private companies should join the “one third of Fortune 100 companies are already enacting their own vaccine/testing mandates.”

OSHA echoed the President’s recommendation by saying they “urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace.”

Employers are responsible for the safety of their workers on the job, so be sure to check out OSHA’s comprehensive COVID-19 guidance to ensure all employees are safe and compliant.

Over the past few months, we’ve covered the legality of mask/vaccine mandates in the workplace, and gave a preview of the “vaccine or test” Occupational Health and Safety Administration (OSHA) ETS.

The initial ETS announcement was fairly vague in some areas, but now that it officially launched last week, more details are available.

Before we dive into the many challenges that have come up against this ETS since launch, first we’ll give a simplified overview of the official rules included.

ETS Overview

According to OSHA’s official press release, this ETS is intended to protect the nation’s unvaccinated workers from workplace exposure to COVID-19.

The ETS protects workers, OSHA says, by requiring employers to “develop, implement, and enforce a mandatory COVID-19 vaccination policy.” Or alternatively, employers may “require employees to choose between vaccination or regular COVID-19 testing coupled with mask wearing.”

OSHA justifies enacting vaccine or testing mandates by pointing out that COVID-19 is the “deadliest pandemic in the nation’s history.” And out of the 750,000 COVID-19 caused deaths, OSHA says “many” were caused by workplace exposure.

“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” said U.S. Labor Secretary Marty Walsh. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19.”

New Rule Summary

Under this ETS, qualifying employers with 100 or more employees – firm or company-wide are required to do the following:

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.
Provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.

Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.

Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer). Employers do not need to pay for testing or masks.
Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

According to OSHA, as of November 04, the ETS “is effective immediately upon its publication in the Federal Register.”

Employers must comply with most requirements within 30 days of publication (December 05) and with testing requirements within 60 days of publication (January 04).

Legal Challenges

Just days after OSHA published the official ETS ruling, more than two dozen states, businesses, business groups, and religious organizations sued, calling the ETS “an overreach of government authority,” according to NPR.

Common arguments presented in the lawsuits against the ETS include:

It violates the Nondelegation Doctrine and the Commerce Clause of the US Constitution – essentially meaning “the ETS constitutes a legislative act beyond the scope of OSHA’s authority.”
It violates the 10th Amendment, “because there is no specific relationship to commerce that allows the federal government to act and the public health and safety are policy powers granted to the states.”
OSHA cannot justify its “grave danger” claim this far into the pandemic, and the ETS defines “grave danger” as lack of vaccination, rather than lack of immunity.

These lawsuits resulted in a nationwide temporary “stay” (rule put on hold) by the Fifth Circuit Court of Appeals in New Orleans. But this decision doesn’t mean the ETS has been totally struck down, it just means the mandates aren’t in effect until the ETS’s legality is decided by the courts.

According to the US Department of Justice, the legality decision process won’t start until next week. Because multiple circuit courts are challenging the ETS, federal law dictates that all the cases be consolidated then chosen by lottery before any case is presented to a federal appeals court. That lottery is supposed to take place “on or around November 16,” according to NPR.

What Should Employers Do?

Although the ETS is currently on hold until the legality is upheld or shot down by a federal appeals court, the National Law Review says employers should still start preparing ETS compliance policies and procedures.

OSHA has a helpful FAQ page with lots of helpful compliance information to help employers get started.

Whatever ends up happening to this ETS, you can find the latest digestible summary of information right here!