Common Questions Regarding the Latest Vaccine Mandates, OSHA ETS

HCAOA partner Littler Mendelson has compiled a Q&A document featuring the most pressing questions employers have regarding President Biden’s latest vaccine mandates and the latest OSHA Emergency Temporary Standard

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• When will the ETS be issued?
  OSHA’s track record during the pandemic tells us it may take some time for OSHA to develop a draft. OSHA stated it plans to issue the ETS within 2-8 weeks (from September 14). 
• How will the ETS calculate 100 employees? Per worksite, per organization or per enterprise?
  In some of its debriefings regarding the regulation, OSHA has indicated that the ETS will likely calculate the 100-employee requirement to mean 100 employees in an enterprise, not 100 employees per worksite.  OSHA should address this question in a further FAQ before issuing the ETS. 
• What will employers use to verify vaccine status?
  OSHA has not answered this question yet.  The ETS will likely provide specific guidance on vaccine verification.  Note that there may be a potential conflict between the ETS’s vaccine mandate and certain state laws, such as in Montana, where employers are prohibited from taking any adverse action based on an employee’s vaccination status.  Employers should start considering feasible processes to determine vaccination status in a manner that also complies with state law. 
• Will the vaccination mandate be satisfied after one vaccination dose?
  OSHA will likely require the employee to be fully vaccinated because data shows that partially vaccinated individuals are not sufficiently protected from the Delta variant.  Fully vaccinated means 14 days after completing two doses of the Pfizer or Moderna vaccine, or one dose from the Johnson & Johnson/Janssen vaccine.

Click here to read the full list of Q&As.