OSHA Emergency Temporary Standards (ETS) mandates

OSHA has released new Emergency Temporary Standards (ETS) mandates for all employers with more than 100 employees.  PLEASE keep in mind that this is DIFFERENT THAN the federal contractor/subcontractor requirements (regardless of census count) which STILL requires employers to prove that all employees have been fully vaccinated by December 8, 2021 (regardless of the recent Governor Abbott ban on mandatory vaccinations).

I know it is confusing – if I did not know better, I would swear confusion was the goal – but this is where we stand today.  We still have 30 days after the date of the final rule’s publication to submit public comments.

I will keep you posted as things change.

EFFECTIVE (presumably) JANUARY 4, 2022, the ETS is as follows:

  1. Employers with more than 100 employees will need to implement a COVID-19 vaccination requirement for their employees
    • Unlike the federal contractor/subcontractor requirement, employers are permitted to offer a weekly testing alternative to employees who refuse vaccinations or are unable to be vaccinated due to a ‘sincerely held religious conviction’
  2. To determine whether or not employers meet the 100-census threshold, employers must:
    • Include ALL employees across ALL US locations, (including common-owned businesses) regardless of where the employees perform work
      • Part-time employees count toward the company total census (although, it is not specified if part-time employees are counted as the same as a full-time employee or as ½ of a person)
        • NOTE: staffing agencies, franchisees and multi-employer workplaces have different standards.  If you fall under one of these categories, please let me know and I will provide you with more information.
  3. All eligible/covered employers are required by the ETS to cover the cost of providing up to 4 (four) hours of paid time off and “reasonable” employer-paid sick leave to support vaccinations
    • IF employees choose to remain unvaccinated, the ETS does not require employers to pay for costs of COVID testing, use of face coverings, sanitizers, etc.   If employees wish to continue employment upon refusing vaccination (for any reason) will be required to pay for this on their own
    • IF a medical or religious exemption request exists – BE CAREFUL.  Except for COVID, HIPAA rules still exist, AND religion is still protected under Title VII of the Civil Rights Act – so what we learn about our employees must remain confidential.  Furthermore, we, as employers, may be required to provide accommodations to those employees who assert refusals under these two provisions.
    • Accommodations for employees who refuse vaccinations can take many forms – working from home, remaining masked, weekly testing at the employees’ expense, isolation, etc.  All these policies must be in writing; remain fair and consistent across the board.  Either way, the accommodation we make must be done in a manner that DOES NOT EXPOSE the employee (the employee who refuses vaccinations) to COVID-19 hazards.


So, what about Governor Abbotts ban on vaccination mandates in Texas? 

According to the Department of Labor (DOL), “OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing.  State and local requirements that prohibit employers from implementing employee vaccination mandates, or from requiring face coverings in workplaces, serve as a barrier to OSHA’s implementation of this ETS, and to the protection of America’s workforce from COVID-19.” 

In other words, OSHA has the authority to override State bans.

If OSHA publishes this rule as it stands today, the ETS will only serve to strengthen the current mandatory vaccination requirements for federal contractors/subcontractors. 

I know this is not great news, but it is where we are at.  If you have any questions – I am absolutely here to help.  Please feel free to contact me at 210-846-4900 or at linda@asklindahr.me.


Linda Drasser

Human Resources Sherpa®


OSHA 10-HOUR Certified