In September, President Biden announced a new national emergency temporary labor standard stating that employers with 100 or more employees must require employees to be vaccinated for COVID-19 or else submit to regular weekly testing. On November 4, the U.S. Occupational Safety & Health Administration (OSHA) released the highly anticipated new rules to implement this directive. Under the rules, employees will have until January 4, 2022 to be fully vaccinated.

You can review the full text of the federal emergency temporary standard (ETS) here. Supplemental information and guidance for the federal ETS are available here. OSHA has also created a useful FAQ page and produced a half-hour webinar overviewing the new ETS.

OSHA’s ETS preempts any state and local laws that ban or limit employers from requiring vaccinations, masks, or COVID-19 testing, like those that have been seen in some states (e.g. Texas or Florida). However, OSHA has said that the ETS is not intended to preempt state and local laws that impose COVID-safety requirements (like those in Washington). The ETS’s requirements for employees to be vaccinated or regularly tested only apply to employees that work “in-office” or come into contact with other people during the course of work. They do not apply to employees that work exclusively from home or exclusively outdoors.

The federal vaccine/testing mandate requires covered employers to:

• Determine employee vaccination status, obtain proof of vaccination from vaccinated employees, and maintain records and a roster of each employee’s vaccination status.
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must remove infected employees from the workplace, regardless of vaccination status, until the employees meet specified return-to-work criteria.
• After January 4, ensure unvaccinated and partially vaccinated workers be 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).
  • The federal ETS does not require employers to pay for unvaccinated employee testing costs, though other laws or collective bargaining agreements may do so.
  • 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.
• Provide paid time off to workers to receive the vaccination and recover from any side effects.

To figure out if an employer is a “covered employer” under the ETS, OSHA takes the number of employees that an employer had on the payroll as of November 5, 2021. However, if a city is under 100 employees as of November 5 but adds enough employees to be 100 or more after that date, then the city will be required to come into compliance with the vaccine mandate. For cities that are on the edge of “100 or more” employees, here are some of the ways that OSHA is counting employees:

• As expected, regular employees that work “in-office” or in indoor settings with other people count towards the 100 or more threshold.
• Employees that perform their work at off-site locations (including working from city-owned vehicles) count towards the threshold.
• All employees of any of an employer’s locations count towards the employer’s threshold, i.e. the employee count is attributed to all employees of the employer wherever they work.
• Part-time employees count towards the threshold. Independent contractors do not count.
• Employees who work from home and outdoor workers count towards the threshold, but the vaccine/testing requirements only apply to those that work at any point indoors “in-office” around other people. People that work exclusively from home or outdoors are not subject to the ETS’s requirements.
• For temporary workers employed through a staffing agency, the temporary worker counts towards the staffing agency’s threshold, not the host employer city’s threshold.
• Temporary and seasonal workers directly employed by a city count towards the threshold.

OSHA issues this final rule after nearly two months of gathering comments from stakeholders. Several conservative state attorneys general announced that they would challenge the vaccine mandate, and on November 6 the 5th U.S. Circuit Court of Appeals (which includes Texas, Louisiana, and Mississippi) issued a temporary stay on the mandate. However, state and federal courts across the country (including the U.S. Supreme Court) have generally been upholding COVID-19 vaccine mandates as constitutional.

Washington L&I to draft rules to implement the Federal Vaccine/Testing ETS

In Washington, the federal ETS will be implemented by the state’s Department of Labor & Industries (L&I). MRSC provides a good overview of federal ETS and Washington’s process for enforcing the standards through our own state labor rules.

L&I will enforce the mandate on public and private employers by making sure that Washington’s labor rules meet or exceed the federal requirements. According to the language of the federal ETS, states that enforce federal labor laws under the “State Plan System” (like Washington) will have until December 5 to implement a state-level employer vaccine mandate at least as stringent as the federal ETS. Washington is required to inform OSHA about its anticipated rules by November 20.

In recent statements (including here and here), Governor Inslee has said that while the state will wait to see OSHA’s final language, the state does not favor allowing regular COVID-19 testing in lieu of vaccination, and that Washington’s implementation of the federal standards could possibly omit the provision for employers to offer employees the ability to “test-out” of vaccination. The state could also expand on the employer vaccine requirements in other ways, such as extending the mandate to employers with less than 100 employees. However, no such expansions have been openly suggested to date.

AWC will continue to monitor this rulemaking and report the latest information as it becomes available.

Dates to remember

November 20 – Deadline for L&I to draft rules and inform OSHA of intended state-level employer vaccine mandate at least as stringent as the federal rule.

December 5 – Deadline for L&I to adopt a state-level employer vaccine mandate at least as stringent as the federal rule.

January 4, 2022 – Deadline for employees of covered employers to receive their final vaccination under the federal ETS. Under the federal ETS, unvaccinated employees will need to undergo weekly COVID-19 testing after this date.