On November 5, 2021, OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) became effective. The ETS mandates COVID-19 vaccination or testing requirements for employers with 100 or more employees. The deadline to comply with obligations related to COVID-19 testing for employees who are not fully vaccinated is January 4, 2022. The deadline to comply with all other obligations is December 5, 2021. Unless extended by rule-making procedures, the ETS will expire six months from the effective date. 1
1 The ETS also preempts inconsistent state and local requirements, including those that ban or limit an employer’s ability to require COVID-19 vaccination. While preemption may be more straightforward in some cases, it is more complicated in others. For example, where a state mandates vaccination, but does not allow for a religious exemption to the mandate, there is a conflict with the ETS. While it is unsettled whether a more stringent state law still would apply, for now the safer approach would be to apply the more stringent requirement as that is the spirit of the ETS.
