By Conn Maciel Carey’s COVID-19 Task Force
On September 9th, President Biden announced that he was directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated, and more importantly, to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing. This new ETS focused on vaccinations and testing is a central element of the President’s newly unveiled Path Out of the Pandemic – COVID-19 Action Plan, with a central tenet to “vaccinate the unvaccinated.”
We heard from our contacts at OSHA that the agency would move much more quickly to prepare and send this ETS to the White House than it had done with the first COVID-19 ETS this Spring and Summer, and they have done just that. On Tuesday, October 12, 2021, the Department of Labor issued a statement confirming that OSHA delivered to the White House’s Office of Management and Budget what the statement characterized as the “initial text” of the ETS. Here is the relevant except from the DOL statement:
“The Occupational Safety and Health Administration has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees to ensure their workers are fully vaccinated or undergo weekly testing to protect employees from the spread of coronavirus in the workplace. On Tuesday, October 12, as part of the regulatory review process, the agency submitted the initial text of the emergency temporary standard to the Office of Management and Budget.”
We thought the reference to “initial text” was peculiar. Generally, it is a proposed final regulation that OSHA delivers to OMB in the context of an emergency rulemaking, not a working draft. But, the very next day, on Wednesday, October 13, 2021, after hitting the “refresh” button more times through the night than we would like to admit, we saw what we were expecting – a proposed final version of Federal OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) has been submitted to the White House’s Office of Management and Budget (“OMB”) for approval:
The entry for the ETS on OMB’s website confirms that OMB: Continue reading