On September 9, 2021, President Biden announced that employers with 100 or more employees would be required to ensure their workers are either fully vaccinated against COVID-19 or undergo weekly testing. President Biden directed the federal Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to adopt a rule to implement these requirements. Last week, OSHA released its new Emergency Temporary Standard (“ETS”), which takes effect December 5, 2021.
The ETS establishes minimum requirements for vaccination, vaccination verification, face coverings, and testing related to COVID-19. Under the ETS, covered employers must adopt a written policy that either mandates all employees are fully vaccinated by January 4, 2022, or that any unvaccinated employees are tested on a weekly basis and wear face coverings. The ETS preempts all inconsistent state and local requirements related to these issues, including any state or local requirements that ban or limit an employer’s authority to require vaccination, face covering or testing.
The ETS applies to all employers under OSHA’s jurisdiction with 100 or more employees at any time during which the ETS is in effect, except for workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, or healthcare employers that participate in Medicare and Medicaid programs. In determining whether an employer meets the 100-employee threshold, an employer must count all employees across an employer’s U.S. locations, rather than at a single facility, as well as part-time employees and employees working remotely.
Employees of state and local government agencies are not directly covered by workplace standards adopted by OSHA, but individual states and territories may adopt OSHA-approved State Plans, which must cover state and local government employees. California is one such state that has adopted an OSHA-approved State Plan, covering state and local government employees, as well as private employees.
State Plans are monitored by OSHA and must provide workplace protections that are at least as effective as the standards adopted by OSHA. When OSHA issues an ETS, as it did on November 4, 2021, jurisdictions with State Plans have 30 days to do one of the following:
- Adopt standards that are identical to OSHA’s new emergency standard;
- Adopt standards that are either comparable or more protective than OSHA’s new emergency standard; or
- Demonstrate that existing standards already provide for workplace protections that are at least as effective as the OSHA standards.
Cal/OSHA & California ETS
The California Division of Occupational Safety and Health (“Cal/OSHA”) is responsible for administering California’s State Plan. As indicated, Cal/OSHA has 30 days from November 4, 2021, or until December 4, 2021, to take action in response to the federal ETS.
Cal/OSHA had previously issued an Emergency Temporary Standard for COVID-19 prevention (“California ETS”) that took effect on November 30, 2020. On June 17, 2021, the California ETS was updated to reflect the availability of COVID-19 vaccines. Cal/OSHA had previously announced that it would readopt the California ETS, with certain proposed revisions, which would take effect in January 2022.
While the California ETS includes requirements based on the vaccination status of employees, it does not mandate vaccinations or require that unvaccinated employees undergo weekly COVID-19 testing. The California ETS also does not specify the methods by which employers are to document vaccination status. Other notable differences between the federal ETS and the current California ETS include the requirement to provide employees “reasonable time” during work hours to receive a primary vaccination dose and additional paid time off to recover from vaccine side effects. Cal/OSHA will need to address these differences by either adopting the federal ETS, or alternative workplace standards that are at least as effective, as well as additional or more rigorous requirements, such as requiring employers with less than 100 employers to implement vaccination or weekly testing mandates.
As expected, many states have already filed lawsuits challenging the ETS, and the Fifth Circuit Court of Appeal issued a temporary stay of the entire ETS. This means that pending judicial review, the mandates of the ETS will not be in effect. However, both public and private employers in California should continue to monitor over the next 30 days how Cal/OSHA responds to the federal ETS and prepare accordingly for changes to workplace standards related to COVID-19.
OMLO will continue to monitor Cal/OSHA’s response to the federal ETS and provide further updates as they become available
This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.
 29 U.S.C. 667
 29 U.S.C. 667(C)(2); 29 CFR 1953.5(b)
 According to OSHA’s FAQs, “reasonable time” includes up to 4 hours of paid time, at the employee’s regular rate of pay, and employers cannot require employees to use any form of accrued leave for the purpose of obtaining a primary vaccination dose during the workday. Employers, however, are not required to provide paid time to employees who get vaccinated after work hours.
 OSHA’s FAQs provide that an employer may require employees to use that paid sick leave when recovering from side effects following a primary vaccination dose, but employers cannot not require employees to accrue negative paid sick leave or borrow against future paid sick leave entitlements to recover from vaccination side effects.