The Occupational Safety and Health Administration (OSHA) has published an Emergency Temporary Standard regarding COVID-19 vaccination and testing requirements. This ETS applies to employers with at least 100 employees. In counting employees, employers must include all U.S. employees (including full and part-time) employed while the ETS is in effect, regardless of the employee’s vaccination status or work location. While employees who work remotely from home, work exclusively outdoors, or report to a workplace without coworkers or customers present must be counted for purposes of determining whether the employer is covered by the ETS, the employer generally does not need to require vaccination or testing for these individuals.
Not surprisingly, several states quickly initiated legal challenges to the ETS. On November 6, 2021, the Fifth Circuit Court of Appeals issued an order staying OSHA’s enforcement of the ETS pending further judicial review. The U.S. Department of Labor and OSHA must respond to the order by 5 p.m. on November 8, 2021.