OSHA’s Mandate-or-Test Emergency Rule Pending Final Review

Update Applicable to:

All employers with 100 or more employees.

What happened?

On October 12, 2021, the Occupational Health and Safety Administration (OSHA) sent the White House a draft of the new Emergency Temporary Standard (ETS) for review and approval per President Biden’s instruction from September 9, 2021.

What are the details?

• On September 9, 2021, President Biden instructed OSHA to develop an ETS that would require employers with 100 or more employees to ensure workers are vaccinated or tested weekly. 

• On October 12, 2021, OSHA submitted a draft of the new ETS to the White House, which is pending approval and will most likely be published to the public between October 18 and October 20, and will be effective immediately in Federal OSHA States (see Article 1 for a list of states).

• States with their own OSHA-approved plan will have 15-30 days from the effective date to follow this three-step guide below:

1. adopt the ETS as enacted by federal OSHA;
2. amend the federal ETS to be just as, or more, effective;
3. enact their own standard or rely on an existing standard that is “just as effective.”

The Workplace Safety Practice Group at Fisher Phillips is familiar with the workings of OSHA and the White House and believes the following timeline is realistic when it comes to the next steps in the regulatory process:

• White House review and approval of the ETS: between October 12 and October 15
• OSHA publishes the ETS and makes it available to the public: between October 18 and October 20
• OSHA publishes the ETS in the Federal Register (making it official law of the land): approximately October 27
• State OSHA Plans will have 15 days to announce the adoption of the ETS or announce an alternative: approximately November 10
• State OSHA Plans have another 15 days to make the ETS (or their own alternative) effective: approximately November 25
• Enforcement begins after expected grace period for compliance lapses: approximately December 1
• State OSHA Plan enforcement begins on approximately January 1, 2022

What do employers need to do?

Employers should review the links above, monitor their state’s ETS, and expect upcoming changes to the COVID-19 policies.

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