On Tuesday, the federal Occupational Safety and Health Administration disclosed that it has finished drafting its Emergency Temporary Standard (ETS) mandating either COVID-19 vaccinations or testing for all employers with 100 or more employees. The ETS will undergo review by OMB-OIRA before final publication. Unlike the ETS for healthcare employers, this review could take as little as a few days.

Once approved, the ETS can be immediately effective, without opportunity for notice and comment. OSHA may give employers a limited amount of time to begin testing or proof of vaccination before enforcement begins. At this time, a number of questions persist, including the type, frequency, and financial responsibility for the testing alternative, and standards and requirements for medical and religious exemptions. If the White House is pushing vaccination as an overarching policy justification for the ETS, it may incorporate requirements that would make testing a less attractive alternative for employers.

The ETS is certain to result in multiple legal challenges, and may be enjoined before it can take effect. However, affected employers should be preparing for potential vaccination or testing requirements. These preparations could include surveying employees on their vaccination status, or requiring that they provide proof of vaccination. Employers interested in the testing alternative may want to explore available testing resources, and how these tests can be procured on a frequent basis. Employers may also want to draft vaccination/testing policies, as well as communications to employees regarding the new federal requirements and their response.