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COVID-19 Vaccination and Testing; Emergency Temporary Standard rule (2021)

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The COVID-19 Vaccination and Testing; Emergency Temporary Standard rule is a significant rule issued by the Occupational Safety and Health Administration (OSHA), U.S. Department of Labor (DOL) effective November 5, 2021, that mandated OSHA-covered employers require either vaccination against SARS-CoV-2 or regular testing and masking. The agency issued this interim final rule under the authority granted to them by the Occupational Safety and Health Act.[1]

HIGHLIGHTS
  • Name: COVID-19 Vaccination and Testing; Emergency Temporary Standard
  • Code of Federal Regulations: 29 CFR 1910, 1915, 1917, 1918, 1926, and 1928
  • Agency: Occupational Safety and Health Administration (OSHA), U.S. Department of Labor (DOL)
  • Type of significant rule: Economically significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    Background

    OSHA determined that at the time they issued the interim rule, COVID-19 infection rates were a cause of grave danger in the workplace. They cited studies from the U.S. Centers for Disease Control and Prevention that said unvaccinated workers were at a higher risk of spreading the virus in the workplace, as well as experiencing severe illness or death upon infection. OSHA said in the rule that the office would keep watch on the health trends of the COVID-19 pandemic and update this interim final rule accordingly. They opened a comment period upon publication that closed on December 6, 2021. OSHA withdrew the emergency temporary standard on January 26, 2022.[1][3]

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:

    “ The Occupational Safety and Health Administration (OSHA) is issuing an emergency temporary standard (ETS) to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID–19 by strongly encouraging vaccination. Covered employers must develop, implement, and enforce a mandatory COVID–19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID–19 testing and wear a face covering at work in lieu of vaccination.[1][4] ”

    Summary of provisions

    The following is a summary of the provisions from the rule's entry in the Federal Register:[1]

    “ OSHA has also determined that an ETS is necessary to protect unvaccinated workers from the risk of contracting COVID–19 at work, as discussed in Need for the ETS (Section III.B. of this preamble). At the present time, workers are becoming seriously ill and dying as a result of occupational exposures to COVID–19, when a simple measure, vaccination, can largely prevent those deaths and illnesses. The ETS protects these workers through the most effective and efficient control available—vaccination—and further protects workers who remain unvaccinated through required regular testing, use of face coverings, and removal of all infected employees from the workplace. OSHA also concludes, based on its enforcement experience during the pandemic to date, that continued reliance on existing standards and regulations, the General Duty Clause of the OSH Act, 29 U.S.C. 654(a)(1), and workplace guidance, in lieu of an ETS, is not adequate to protect unvaccinated employees from the grave danger of being infected by, and suffering death or serious health consequences from, COVID–19.[4] ”

    Significant impact

    See also: Significant regulatory action

    Executive Order 12866, issued by President Bill Clinton (D) in 1993, directed the Office of Management and Budget (OMB) to determine which agency rules qualify as significant rules and thus are subject to OMB review.

    Significant rules have had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. Executive Order 12866 further defined an economically significant rule as a significant rule with an associated economic impact of $100 million or more. Executive Order 14094, issued by President Joe Biden (D) on April 6, 2023, made changes to Executive Order 12866, including referring to economically significant rules as section 3(f)(1) significant rules and raising the monetary threshold for economic significance to $200 million or more.[1]


    The text of the COVID-19 Vaccination and Testing; Emergency Temporary Standard rule states that OMB deemed this rule economically significant under E.O. 12866:

    “ Thus, in light of the Secretary's conclusion that the COVID–19 pandemic constitutes an emergency situation, the Secretary has notified OIRA that it is necessary for OSHA to promulgate this regulation more quickly than normal review procedures allow, pursuant to E.O. 12866 Sec. 6 (a)(3)(D). OIRA has waived compliance with Sec. 6(a)(3)(B) and (C) for this economically significant rule.[4] ”

    Text of the rule

    The full text of the rule is available below:[1]

    See also

    External links

    References

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Federal Register, "COVID-19 Vaccination and Testing; Emergency Temporary Standard," January 9, 2024.
    2. ↑ Federal Register, "COVID-19 Vaccination and Testing; Emergency Temporary Standard," January 9, 2024.
    3. ↑ Federal Register, "COVID-19 Vaccination and Testing; Emergency Temporary Standard," January 9, 2024.
    4. ↑ 4.0 4.1 4.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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