OSHA Releases ETS for Covid Vaccines and Testing Requirements, Then Courts Of Appeals Negate It


By Jennifer Jacobus, PHRca, SDEA Director of HR Services

In the ping-pong match that is the government response to COVID, on November 4, 2021, OSHA released the Emergency Temporary Standards (“ETS”) outlining Covid requirements for employers with 100 or more employees. On November 5, 2021, a suit was filed in the Court of Appeals for the Fifth Circuit challenging the ETS. Cases were also filed in the Sixth, Seventh, Eighth, and Eleventh Circuits. (Surprisingly, the Ninth Circuit representing California has not filed a case. Yet.)

As of now, OSHA’s ETS has been stayed by the Fifth Circuit until it can be fully reviewed by the Court. OSHA has until 5:00pm on Monday, November 8 to respond to the arguments against implementing the ETS as currently written, and the challengers have until 5:00pm on November 9 to reply to OSHA’s response.

If judges in all the Appeals Courts rule in favor of the ETS, employers must be prepared to enact the required policies. The ETS mandates that all employers with 100 or more employees require all employees be fully vaccinated or that employees be subject to weekly Covid testing. 

The ETS requirements apply to all employees (including part-time employees) of covered employers except for employees:

  • Who do not report to a workplace where other individuals are present (e.g., coworkers or customers);
  • Working exclusively from home; or
  • Working exclusively outdoors.

Employers with certain healthcare workers and who are subject to the EO 14042 or the CMS rule will not be subject to the ETS. Employers, however, may have to contend with separate federal vaccine rules if they have some employees who are covered by the ETS and others that are subject to EO 14042 or the CMS rule.

Employers would still grant requests for accommodations for medical reasons or a sincerely held religious belief.  Employers would still require employees who receive an exemption from COVID-19 vaccines to comply with the masking and testing requirements under the ETS, unless those employees have an accommodation from those requirements or work remotely.

One major question was answered with the ETS.  OSHA’s ETS has declared that employers are not required to pay their employees for testing; good news, right?  Not so fast says SDEA’s attorney, Chris Olmsted. Chris reminded us that, “Cal-OSHA has 30 days to publish its own standards, so we’ll have to see what comes”. Chris went on to say that “OSHA also clarifies that state laws might require employers to pay. Chris predicts that “Cal-OSHA will require this (pay for testing). In California, employers almost always have to pay, and I don’t expect this to be an exception”.

So as the saying goes, “par for the course”, we are left with some answered questions and some unanswered questions. Stay tuned for ETS and Cal-Osha updates and as always, call SDEA for guidance, we are here to help! 858-505-0024.


Contact us: 858.505.0024