As we previously reported, on Sept. 9, 2021, President Biden directed the Occupational Safety and Health Administration (OSHA) to require employers with 100 or more employees to mandate COVID-19 vaccination or weekly testing as part of a new COVID-19 action plan. The president also directed OSHA to mandate paid time off for employees to get vaccinated. OSHA will implement these directives by issuing an emergency temporary standard (ETS).

Following the announcement of President Biden’s COVID-19 action plan, it was unclear how long OSHA would take to develop and issue the ETS. On Oct. 12, 2021, the U.S. Department of Labor announced that it had sent its ETS to the White House Office of Information and Regulatory Affairs (OIRA) for final review. While OIRA sometimes takes weeks or even months to perform its analysis and approve a final rule, President Biden has pressured federal agencies to move quickly in issuing the ETS. Thus, it is expected that OIRA will approve the standard quickly.

Employers should prepare for emergency temporary standard mandates

After OIRA approves the ETS, OSHA will publish it in the Federal Register. It is likely that the standard will take effect shortly after it is published, so employers should prepare to implement vaccination and testing programs soon.

Several unanswered questions regarding the coverage and application of the ETS still remain. It is still uncertain how the 100 employee threshold trigger will be calculated for employers with multiple facilities, how parent and subsidiary company obligations will be determined and whether the employer or employees will bear the cost associated with mandatory COVID testing. Hopefully the ETS will answer these and more open questions. We will report on these issues as soon as additional information is available.

Photo of Abbie Thederahn Abbie Thederahn

As an associate, Abbie assists Porter Wright’s labor and employment lawyers with all aspects of labor and employment law, including regulatory matters as well as litigation.

As a law student, Abbie gained experience as a legal extern with the Ohio Attorney General’s office…

As an associate, Abbie assists Porter Wright’s labor and employment lawyers with all aspects of labor and employment law, including regulatory matters as well as litigation.

As a law student, Abbie gained experience as a legal extern with the Ohio Attorney General’s office, as a judicial extern to the Hon. Christopher A. Boyko of the U.S. District Court for the Northern District of Ohio, and as a summer associate with Porter Wright. She also served as a senior editor of the Case Western Reserve University Law Review.