OSHA’s Impending Emergency Temporary Standard (ETS)


By Jennifer Jacobus, PHRca, SDEA Director of HR Services.

Anyone who is holding their breath thinking that President Biden’s plan to require that all private employers, with 100 or more employees, mandate vaccinations or weekly testing, should exhale and start working on the implementation of your plan.

OSHA is expected to release the ETS in a “matter of weeks” and employers who do not comply with the standard will be subject to a $14,000 penalty per violation.

For states where OSHA (federal) does not have jurisdiction over workplace safety (this includes California) the state agency, Cal-OSHA will have 15-30 days to adopt OSHA’s ETS or implement a policy that is “just as effective”.

As we have experienced over the past year-and-a-half, plus, this ETS leaves employers with many unanswered questions.  Some of those are as follows:

  • Will remote workers be covered? – Indications are that employees who never come into work will not be covered but if a remote worker will ever come into the office or work with others outside of the office, they will be covered.
  • How will the 100 employees counted? – While not clear, OSHA suggested that the count will be based on the total number of employees in the company and not based on location.
  • Will employers be required or permitted to ask for proof of vaccination? – Unclear.
  • Who pays for testing? – Unclear.  History has shown us that employers will be required to pay for the testing.
  • Is pay required for time to get the vaccine? – Again, unclear.  Recommended to pay until further clarification is provided.  Generally speaking, employers are required to pay for employee-mandated testing.

Employers that will fall under the ETS should plan now.  Adopt procedures to collect and maintain confidential information on vaccinated workers; determine if you will require the vaccine or the mandatory testing; create a clear reasonable accommodation policy, considering each employee’s request individually; be prepared for employees to request an accommodation from the weekly testing; and have a plan for addressing non-compliance.

While we may be getting use to the ever-changing requirements surrounding Covid, vaccines, and masking requirements, this does not make the information any easier to digest. 


Remember that SDEA is here to help and provide guidance. SDEA members have access to unlimited consultation with our HR Consultants; just a call away — 858.505.0024. 

Contact us: 858.505.0024