---
url: 'https://www.fmjlaw.com/uncertain-future-federal-vaccine-mandate-covid-19/'
title: Uncertain Future of OSHA Emergency Temporary Standard on COVID-19 Vaccinations
author:
  name: Georgie Stocks
  url: 'https://www.fmjlaw.com/author/gstocks/'
date: '2021-11-22T15:59:24+00:00'
modified: '2021-11-22T16:06:28+00:00'
type: post
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  - Article
  - COVID-19 Resource
  - COVID-19 Resource
  - Legal Alert
  - Newsroom
  - Thought Leadership
image: 'https://www.fmjlaw.com/wp-content/uploads/2021/11/AdobeStock_425320825-e1636210612370.jpeg'
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---

# Uncertain Future of OSHA Emergency Temporary Standard on COVID-19 Vaccinations

The Occupational Safety and Health Administration’s (OSHA) rollout of its new Emergency Temporary Standard (ETS) on COVID-19 vaccinations for certain private employers has been anything but smooth. As you know, the ETS would require most employers with 100 or more employees to mandate vaccinations or weekly testing, with narrow exceptions.

Within days after the ETS went into effect on November 5, 2021, numerous state officials and other parties filed motions for injunctive relief in various jurisdictions to prevent it from taking effect. The United States Court of Appeals for the Fifth Circuit was the first to take action by ordering a temporary stay on enforcement of the ETS as of November 6. The Fifth Circuit affirmed its stay on November 12, which halts enforcement of the ETS until further court action is taken in the case. In addition, the Fifth Circuit ordered OSHA to refrain from implementing or enforcing the ETS while the case is pending. In a [statement released last week](https://www.osha.gov/coronavirus/ets2), OSHA announced that it has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

That litigation and the numerous other lawsuits which were filed against the ETS have since been consolidated into one case that now sits before the Sixth Circuit Court of Appeals. While covered employers are not required to comply with the terms of the ETS while its enforcement is stayed, there is uncertainty as to whether the Sixth Circuit will maintain the stay which was put in place before the case was transferred. Moreover, OSHA has not yielded its authority or intent to enforce the ETS as written (including with the existing deadlines) should the stay be lifted. Given the speed with which this case has been handled thus far, further developments may happen quickly. FMJ’s HR & Employment practice group will continue to follow the developments in this situation closely, and we are here to assist employers as they decide the best course for their business in the meantime.

As a reminder, the key components of the ETS are as follows:

- The ETS covers employers that have 100 or more employees (whether full-time or part-time), regardless of each employee’s location. Remote employees and employees who work at smaller locations are counted for purposes of determining whether this minimum threshold is met. While the minimum threshold is 100 employees, OSHA is exploring the possibility of expanding this scope in the future to include smaller employers as well.
- The ETS provides covered employers with two options:
Implement a mandatory vaccination policy for all employees, with limited exceptions for employees who are eligible for a reasonable accommodation due to a medical circumstance or sincerely held religious belief, as well certain exclusions which are referenced further below; or
- Implement an alternative policy that encourages vaccinations but permits employees to opt-out by committing to be tested for COVID-19 at least once each week and wearing a mask in most situations in the workplace.

- Whether to implement a mandatory vaccination policy or an alternative policy is within the discretion of the employer – employees will not have the option to decline the vaccine and elect testing if their employer implements a mandatory vaccination policy.
- If the current stay on enforcement is lifted, covered employers would need to be in compliance with most of its terms as of December 6, 2021, and required testing for unvaccinated employees would need to begin by January 4, 2022.
- OSHA has indicated that the ETS is intended to preempt any inconsistent state or local requirements, including laws in a few states which purport to prohibit employers from implementing vaccine requirements. States that have their own state OSHA plans, including Minnesota and a number of others, will have thirty days to either adopt the ETS or implement standards at least as effective as those set forth in the ETS. While Minnesota OSHA (MNOSHA) has [stated](http://www.dli.mn.gov/about-department/rulemaking/minnesota-osha-rulemaking) that it intends to adopt a compliant standard within the thirty-day timeframe, it has also indicated that its implementation and enforcement plans could change based on the pending litigation against the federal ETS.
- The ETS does not require employers to pay for the cost of weekly testing or masks going forward for any employee who decides to remain unvaccinated in accordance with an alternative policy. Employees may be required to bear the burden of these costs unless another federal, state, or local law (or an employer’s collective bargaining agreement) requires otherwise.
- The ETS does, however, require employers to provide a reasonable amount of paid time off for employees to get the vaccine (up to four hours of paid time per employee for this purpose), as well as reasonable paid sick time for employees to recover from an illness or injury resulting from the vaccine.
- Employers are subject to certain recordkeeping requirements under the ETS. Among other things, employers must determine the vaccination status of each employee, including whether the employee is fully vaccinated or partially vaccinated (regardless of which policy option the employer implements). Employees who are vaccinated will be required to provide suitable proof of vaccinated status to the employer. What constitutes suitable proof is specifically defined in the ETS. For any employees who remain unvaccinated, the employer will be responsible for monitoring and enforcing consistent mask use (subject, of course, to exemptions that may apply to eligible employees).
- With some exceptions, the requirements under the ETS do not apply to workplaces that are subject to certain other federal vaccination mandates implemented recently, including, among others, the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. Employers should bear in mind that the court-ordered stay on enforcement of OSHA’s ETS does not impact implementation or enforcement of such other mandates.
- The scope of the ETS also excludes certain employees, including those: (i) who do not report to a workplace where other individuals are present (coworkers, other workers or customers, for example); (ii) while working from home; or (iii) who work exclusively outdoors. For employers that implement an alternative policy, the frequency of testing required for any particular employee will depend on how frequently the employee reports to a work location where other individuals are present.

**Our team is continuing to monitor developments surrounding the ETS and is available to answer your questions or assist with policy recommendations as needed. ** Please contact [Shannon McDonough](https://www.fmjlaw.com/professional/shannon-m-mcdonough/) at [shannon.mcdonough@fmjlaw.com](mailto:shannon.mcdonough@fmjlaw.com), [Heidi Carpenter](https://www.fmjlaw.com/professional/heidi-a-carpenter/) at [heidi.carpenter@fmjlaw.com](mailto:heidi.carpenter@fmjlaw.com), or [Natolie Hochhausen](https://www.fmjlaw.com/professional/natolie-s-hochhausen/) at [natolie.hochhausen@fmjlaw.com](mailto:natolie.hochhausen@fmjlaw.com) to discuss how we may be able to assist your business.

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