The federal Occupational Safety and Health Administration has published its emergency temporary standard. It mandates employers with at least 100 employees to “develop, implement and enforce” a COVID-19 vaccine policy. Employers may choose between requiring all employees to be vaccinated or establishing a policy where employees undergo regular COVID testing and wear face coverings at work.

There are separate rules for healthcare facilities.

It is not directly enforceable by Fed-OSHA in California, but California must adopt standards that are at least as effective.

The Federal ETS will become effective November 5th when it is published in the Federal Register. Employers will be required to comply within 30 days.

Fed-OSHA can issue an ETS if it determines that employees are subject to “grave danger” from exposure to harmful substances or agents. OSHA’s Federal Register posting states, “Unvaccinated workers are much more likely to contact and transmit COVID-19 in the workplace than vaccinated workers. OSHA has determined that many employees in the U.S. who are not fully vaccinated against COVID-19 face grave danger from exposure to SARS-CoV-2 in the workplace.”

“OSHA is confident that employers with 100 or more employees have the administrative capacity to implement the standard’s requirements promptly,” the agency says, “but it is less confident that smaller employers can do so without undue disruption.”

The vaccine mandate raises many questions for California’s occupational safety and health community, including:

  • What is the requirement for an ETS? How soon would Cal/OSHA have to adopt the provisions of the ETS? With regular rulemaking, a state plan must be at least as effective as the federal requirement within six months.
  • How does this development affect the pending readoption of Cal/OSHA’s COVID ETS? The Standards Board recently released draft language for the readoption, which is expected to have a vote in December. Will the board now include the vaccine mandate in the ETS?
  • Will employers who currently require employees to be fully vaccinated or lose their jobs be forced to change the policies?
  • How many California employers will be affected by this mandate?
  • Will the likely to be filed lawsuits upend the whole process?