Being United Makes All The Difference

Welcome to United Fresh 



Sign-up for our newsletter

Member Alert: OSHA Announces ETS Vaccine/Testing Mandate

Nov 04, 2021

The Occupational Safety and Health Administration (OSHA) released today the long- anticipated pre-published version of its new emergency temporary standard (ETS) related to COVID vaccinations and testing. The ETS goes into effect January 4, 2022 (60 days after the date of publication in the federal register), with some requirements effective December 5, 2021. Emergency temporary standards are effective for 6 months. Under the ETS, employers with 100 or more employees must require vaccinations or weekly testing of their employees by January 4, 2022.

In addition, the ETS preempts and replaces any state or local requirement that forbids an employer from mandating vaccination. States may adopt protective measures that are as or more effective than the OSHA ETS. The full ETS is available here. An OSHA Q&A/Press Release/FAQ describing the ETS is available here. OSHA also recorded a webinar and is working to develop FAQs, sample plans, etc.

Key Provisions Include: 

• The OSHA ETS requires employers with 100 or more employees to mandate that all their employees be “fully” vaccinated against COVID-19 or produce a negative test result on at least a weekly basis before coming to work.
 
• The 100-employee trigger for coverage of the ETS applies on a company-wide basis and is not based upon the number of employees at a particular site.
 
• Under the ETS, employers may offer weekly testing as an option to accommodate those employees who cannot be or refuse to be vaccinated, including those who have underlying medical conditions or religious exemptions.   
 
• The ETS does not require employers to provide or pay for tests. However, the OSHA rule also requires that these employers provide paid time for employees to get vaccinated, and ensure all unvaccinated workers wear a face mask in the workplace, beginning December 5, 2021.
 
• This does not apply to workers who work exclusively outdoors, or while working from home
 
• Most requirements go into effect 30 days after publication in the Federal Register; employers must comply with the testing requirements 60 days after publication 

What Does This Really Mean?

United Fresh CEO Tom Stenzel joined other food and agriculture association CEOs last week in a meeting with the Office of Management and Budget, Department of Labor, OSHA and the Small Business Administration to express our concerns about the potential disruption in the food supply chain exacerbating current labor shortages. The group submitted documentation raising concerns about many of the issues this ETS raises. A copy of that letter can be found here.

In the big picture, we expect multiple immediate legal challenges to the ETS, including whether OSHA has met the legal standard for issuing an ETS and whether OSHA can preempt state laws that prohibit employer vaccine mandates. It is possible that a Court may issue an injunction temporarily halting implementation of the ETS until after the Court has the opportunity to review the ETS. Historically, of the 10 ETSs issued in the past 50 years, at least five were stayed or blocked by the courts.

While all employers should begin planning for the best ways to implement this regulation in their businesses, all involved recognize that enforcement of the rule will primarily come from employer operations.  OSHA has limited resources to truly enforce the rule inspecting millions of workplaces and as many as 80 million U.S. workers that are covered.  

Over the next several days, we will be providing a more detailed analysis of the ETS and will continue to share information about this evolving situation.

Contact

Robert L. Guenther

Senior Vice President, Public Policy

United Fresh Produce Association

rguenther@unitedfresh.org

202-303-3409/443-864-0214

Comments are closed.