On Tuesday, October 12, the Office of Management and Budget (OMB) began its required review of a draft Occupational Health and Safety Administration (OSHA) emergency temporary standard (ETS) that would mandate certain private-sector companies to require either employee COVID-19 vaccinations or weekly virus tests. Once the OMB completes its review, the draft OSHA mandate could take effect immediately, although the OMB could also require changes to the draft standard.
Our allies are working with the Coalition on Workplace Safety and the Small Business Administration’s Office of Advocacy to push back on the OSHA ETS. If and when it is published, the ETS is expected to be immediately challenged in court.
The ETS has not yet been made public; however, an order issued by President Joe Biden on September 9 called for a regulation requiring businesses with at least 100 employees to mandate workers to be fully vaccinated against COVID-19 or be tested weekly for COVID-19. President Biden also directed that the rule provide for paid time off for workers to get vaccinated and to recover from any side effects. The ETS is expected to contain provisions harmonizing the “vaccine-or-test” mandate with employer obligations to provide reasonable accommodations for disabled employees under the Americans with Disabilities Act (ADA) and for employee religious beliefs pursuant to Title VII of the Civil Rights Act of 1964.