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OSHA just released the pre-publication version of its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The final rule takes effect upon publication in the Federal Register on November 5; however, covered employers must comply with:

  • Most provisions by 30 days after publication; and
  • Testing requirement by 60 days after publication.

Scope and applicability

The scope of the standard includes general industry, maritime, construction, and agriculture. Covered entities include all private employers with 100 or more employees firm- or corporate-wide.

In state-plan states, state- and local-government employers, as well as private employers, with 100 or more employees will be covered by state-plan-state rules, which must be promulgated within 30 days of the federal ETS. Note that the federal ETS preempts all state and local requirements that ban or limit the authority of employers to require vaccination, testing, or face covering.


Workplaces not covered by the ETS include:

  • Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors;
  • Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (29 CFR 1910.502);
  • Workplaces of employers who have fewer than 100 employees in total firm- or company-wide; and
  • Public employers in states without state plans.

If an employer is covered by the ETS, it does not apply to:

  • Employees who do not report to a workplace where other individuals are present;
  • Employees while working from home; or
  • Employees who work exclusively outdoors.

Summary of requirements

Federal OSHA’s latest final rule will require covered employers to develop, implement, and enforce a policy requiring:

  • COVID-19 vaccination, or
  • Employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

Other required elements of the rule include:

  • Determination of employee vaccination status;
  • Employer support for employee vaccination;
  • Testing of employees not fully vaccinated;
  • Employee notification of positive test and removal;
  • Face coverings of employees not fully vaccinated;
  • Providing information to employees;
  • Reporting COVID-19 fatalities/hospitalizations; and
  • Making records available.

More information

OSHA offers more information and guidance including a copy of the rule, several fact sheets, FAQs, sample policy templates, and links to materials incorporated by reference.

News update 1: On November 5, the final rule appeared in the Federal Register. Most provisions of the rule have a compliance date of December 6, and the testing requirement has a compliance date of January 4.

News update 2: On November 6, the Fifth Circuit Court of Appeals issued a temporary stay on the final rule for LA, MS, and TX. The rule is stayed for these three states pending further action by the court. The court asked the government and the petitioners to file motions on November 8 and 9, respectively.

News update 3: On November 7, Texas sent the Fifth Circuit Court of Appeals a motion to stay the ETS, and argues that the ETS exceeds the scope of OSHA’s statutory authority and violates foundational administrative law principles. On November 8, the Fifth Circuit asked the government to respond by November 10 to the Texas motion and Texas to reply by November 11.

News update 4: On November 8, attorneys for OSHA filed an opposition to the emergency stay motion with the Fifth Circuit. The attorneys argue the petitioners’ requests for relief are premature, the petitioners are unlikely to succeed on the merits, and the petitioners have not shown any employer injury outweighs the injuries to government and the public interest.

News update 5: On November 9, the petitioners filed a motion to stay enforcement pending review with the Fifth Circuit. The petitioners argue that the ETS exceeds OSHA’s statutory authority because it attempts to protect employees from employees, does not relate to the workplace, mandates a vaccine, and does not address a toxic or physically harmful substance or agent.

News update 6: On November 10, the Texas Trucking Association and others sent the Fifth Circuit a petition for review of the ETS and a motion to stay the ETS pending review. The group argues that without a stay, businesses face immediate irreparable harm, including unrecoverable compliance costs, lost profits, lost sales to competitors (with less than 100 employees), etc. Also, on November 10, attorneys for OSHA filed a supplemental opposition to the emergency stay motion with the Fifth Circuit. The attorneys argued that OSHA had authority to adopt the ETS and that the agency reasonably concluded that the standard is necessary to address a grave danger.

News update 7: On November 11, Texas filed its reply with the Fifth Circuit in support of a stay, arguing again that the ETS exceeds the scope of OSHA’s statutory authority and violates foundational administrative law principles. Also, on November 11, other documents were filed with the Fifth Circuit, including one from the American Medical Association in opposition to motions to stay the ETS.

News update 8: On November 12, the Fifth Circuit issued a 22-page opinion in Case No. 21-60845 that concludes: “The petitioners’ motion for a stay pending review is GRANTED. Enforcement of the Occupational Safety and Health Administration’s “COVID-19 Vaccination and Testing; Emergency Temporary Standard” remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction. In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order.” Subsequently, federal OSHA said, “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

News update 9: On November 16, attorneys for OSHA notified the United States Judicial Panel on Multidistrict Litigation that there were 34 petitions for review of the ETS in the D.C., First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals. The OSHA attorneys requested the Panel to consolidate the petitions. In response, on November 16 the Panel randomly selected the United States Court of Appeals for the Sixth Circuit Court in which to consolidate the petitions for review. That means the case against the OSHA ETS will be heard by the Sixth Circuit.

News update 10: The Sixth Circuit schedule indicates the court is collecting motions/responses through December 10.

News update 11: On November 29 OSHA attorneys filed a motion opposing petitions for the Sixth Circuit to hear the case with the 16-member court. The agency prefers a three-judge panel.

News update 12: On December 3 OSHA issued an extension of the ETS comment period until January 19.

News update 13: Please refer to the OSHA ETS goes to appeals court article for more updates.