November 22, 2021. On November 5, The Occupational Safety and Health Administration (OSHA) issued its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The ETS may change or be delayed due to current legal challenges it’s facing. Regardless, we want members to be prepared and will update this page as details change.
This OSHA ETS requires covered employers to:
Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.
Provide time off for employees to get vaccinated.
Implement notification protocols and removal protocols for employees who get COVID-19.
Maintain vaccination records.
VLCT and PACIF both anticipate that the ETS will apply to both private and public employers in Vermont. This is because Vermont has a state plan which extends OSHA requirements to public sector employers. The Vermont Occupational Safety and Health Administration (VOSHA) must issue its own rule within 30 days. This rule may be more expansive than the OSHA ETS, but is not expected to be.
The ETS was stayed by the U.S. Court of Appeals, Fifth Circuit. The administration is currently in the Sixth Circuit Court asking that the stay be overturned. If that happens, the ETS would likely be implemented as planned. Therefore, municipalities should keep the following highlights in mind:
This ETS will apply to municipal employers with more than 100 employees in places, like Vermont, with an adopted state plan (VOSHA) that extends occupational safety and health regulations to also cover public sector employers. (OSHA COVID-19 Vaccination and Testing ETS FAQs Question 2.E).
Vermont is required to amend VOSHA and adopt regulations so that its safety and health protections “are at least as effective” as the Federal ETS. It’s unclear if the Vermont adoption process could delay the effective date of any requirements. In fact, VOSHA could establish its own effective dates. (OSHA FAQs Question 1.C).
Employers covered by the ETS will need to be ready to implement certain requirements quite soon after federal legal hurdles are cleared (perhaps as soon as January 4, 2022). The rule could take effect at once, and some requirements could take effect 30 days later.
Both part-time and seasonal employees count towards the employee count (100) in most instances. However, the ETS only applies if you have 100 employees on staff today or if you bring on board 100 employees while the ETS is in effect.So the fact that you had 100 total staff last summer doesn’t mean you need to follow the ETS today if they have since left your payroll (according to the OSHA FAQs Questions 2.A.8 and 2.C).
- OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard
- OSHA's Summary of this ETS
- OSHA's FAQs about this ETS
- OSHA's Resource Page about this ETS, including vaccination, testing, and face covering requirement templates
- The National League of Cities Blog Post about this ETS
- VLCT's FAQs about this ETS (coming soon)
- VLCT's Guidance on Vaccine Mandates (has not been updated to reflect the OSHA ETS)
VLCT will monitor this situation and provide additional information as soon as possible.
PACIF members dealing with issues related to vaccine mandates, as with other employment situations, may access the Human Resources Consultation Program. If your municipality encounters circumstances that need legal guidance, such as the need to accommodate an employee for medical or other reasons, please contact Jill Muhr, Senior Human Resources Consultant, to discuss the situation and whether it qualifies for the Employment Practices Liability (EPL) Referral Program. The EPL Referral program provides PACIF members with a certain amount of free, targeted legal assistance with employment matters. Jill may be reached at firstname.lastname@example.org or via her direct office number, 802-262-1923.