Latest Federal Vaccine Mandates Apply to Many AAAs
In September, President Biden announced additional measures to combat the spread of COVID-19 through mandatory COVID-19 vaccinations for certain employees in the private sector, federal government and health care settings. President Biden's plan directed the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) requiring vaccination or weekly COVID-19 testing for employees of large private-sector businesses. OSHA's ETS policy went into effect and supporting guidance was issued on November 5.
The day after its issuance, the ETS was temporarily blocked by a federal appeals court. As we wait for the courts to render a verdict (keeping in mind this may be a case that could make its way up to the Supreme Court), we wanted to break down some of the facts for USAging members as you consider what this ETS may mean for you and your agency. Employers impacted by the policy should continue to take steps towards compliance given the short window provided for that transition if the rule is upheld.
The November 5 OSHA ETS applies to private employers with 100 or more employees. Employers must count all employees (including part-time, seasonal, remote), but not independent contractors, toward the 100-employee threshold. The 100+ employee threshold begins on the effective date (November 5, 2021), although subsequent increases in staffing levels above the threshold will require compliance.
- Therefore, we believe the ETS applies to all non-governmental AAAs that have 100 or more employees. Please note that this is not legal advice, merely USAging's current read of the ETS, so we recommend consulting your relevant legal and business partners.
- The ETS does not apply to state and local government employers unless the state is under an OSHA State Plan. In states with OSHA-approved State Plans, states must adopt requirements for state and local employers that are at least as effective as OSHA's requirements in this ETS.
- Employers are required to comply with mask-wearing, record-keeping and all other requirements under the ETS except for weekly testing of unvaccinated employees starting December 6, 2021. Employers must ensure all employees have received one dose of a single-shot vaccine, or both shots of a two-dose vaccine, or they must begin weekly testing by January 4, 2022.
This latest ETS does not apply to workers whose vaccination is addressed by the federal contractor Executive Order issued by the Biden administration in September OR the OSHA health care ETS issued previously. While USAging is unaware of any AAA or Title VI member agencies that would be subject to the federal contractor rule, as federal grants are not applicable, some of our members have reported that their health care partners may require a health care ETS level of compliance from their contracted partners in some situations. Again, please consult experts on this topic if it is unclear precisely how your agency is or is not affected.
To learn more about the private-sector ETS, visit OSHA's ETS Factsheet and OSHA's ETS Frequently Asked Questions.