Insights

Large Employers May Now Be Subject to OSHA ETS in Addition to NYS and NYC COVID-19 Mandates

December 20, 2021

Employers with 100 or more employees may now have to implement measures in accordance with the November 5, 2021 Emergency Temporary Standard (“ETS”) published by the Occupational Safety and Health Administration (“OSHA”), which, as of Friday, December 17, 2021, is no longer ‘stayed’ by the courts. This update comes on the heels of new mandates requiring employers in NYS and NYC to comply with strict mask and vaccination mandates respectively, as stated in our December 13th alert and our December 15th alert.

The ETS requires that employers with 100 or more employees (“Large Employers”) implement (i) a mandatory COVID-19 vaccination policy or (ii) a policy requiring employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace. As previously reported, pursuant to a federal court order staying implementation of the ETS nationally, OSHA had suspended its implementation and enforcement of the ETS. However, on December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the stay of the ETS, and OSHA will resume implementation and enforcement of the ETS. While a number of petitioners in the OSHA ETS litigation have already filed emergency appeals to the U.S. Supreme Court seeking a further stay of the ETS pending review, there is currently no stay in effect.

This is what employers need to know as of this date:

  • The ETS compliance dates of December 5, 2021 for most requirements and January 4, 2022 for implementation of a testing option for unvaccinated employees will not be enforced. Instead, OSHA has announced that it will not issue citations for noncompliance with (i) any requirements of the ETS before January 10, 2022, and (ii) the testing requirements before February 9, 2022, provided that an employer is exercising reasonable, good faith efforts to come into compliance with the ETS. Thus,
     
    • By January 10, 2022, Large Employers must (i) determine the primary vaccination status of each employee and obtain proof thereof, (ii) implement either a mandatory vaccination policy or vaccination/testing policy (employers should check for applicable stricter local or state laws. See below for NYC Large Employers), (iii) provide paid leave for vaccination and recovery from side effects, and (iv) provide notices to employees as required by the ETS.
       
    • By February 9, 2022, Large Employers (not subject to stricter state or local restrictions) who have elected a weekly testing/masking option for unvaccinated employees must implement testing procedures.
       
  • Herrick’s alert detailing the OSHA ETS requirements is available here.
     
  • Assuming the ETS remains in effect and is not stayed again, it preempts only those state or local laws that ban or limit employers from requiring a vaccine, testing or a face covering. Thus, while Large Employers should prepare to comply with the ETS requirements, New York State businesses must also comply with a stricter state-wide mask mandate, and businesses in New York City must further comply with the city’s stricter worker vaccination requirement taking effect December 27, 2021. Recaps of these requirements are below. Thus,
     
    • Large Employers in New York State must comply with the ETS requirements above. However, until at least January 15, 2022 (the date NYS will re-evaluate the mask mandate), they must follow a stricter mask policy: everyone entering a business’s premises, including employees, visitors and patrons, must wear a mask, regardless of individual vaccination status if the business does not require proof of full-vaccination status for entry.
       
    • Large Employers in New York City must implement a mandatory vaccination requirement even though the ETS provides for a testing option in lieu of vaccination.

NYS Mask Mandate In Effect Through At Least January 15, 2022

As of December 13, 2021, as announced by Governor Hochul, businesses in New York State must either (i) require all workers and visitors who enter the business’s indoor space to wear masks (regardless of vaccination status), or (ii) require proof of full vaccination from all individuals. This requirement applies to all “indoor public places,” which includes any indoor space that is not a private residence.

Governor Hochul advised that this measure is effective through January 15, 2022, after which NYS will re-evaluate the requirement, based on then-current conditions.

Herrick’s alert detailing the NYS Mask Mandate is available here.

NYC Private Workplace Vaccination Requirement Goes Into Effect December 27, 2021

Businesses in New York City are further subject to a city requirement that all private-sector “workers” (employees, independent contractors, etc.) who work on-site show proof they have received at least one dose of an approved COVID-19 vaccine by December 27, 2021. For those vaccines requiring a second dose, workers will then have 45 days to either show proof of having received their second dose or be excluded from the workplace. Any employees seeking exemptions from the vaccination requirement must submit reasonable accommodation requests by December 27. As of December 27, businesses may not allow any unvaccinated workers to come to their workplace, unless entry is permitted pursuant to the reasonable accommodation process or for other limited purposes.

Note that, at least until January 15, 2022 (the date NYS will re-evaluate the mask mandate), until New York City businesses are 100% vaccinated (i.e., all employees, and everyone else entering the premises are 2 weeks from their final dose in a one- or two-dose vaccination series), everyone on the premises must wear masks, regardless of individual vaccination status.

Herrick’s alert detailing the NYC private workplace vaccination requirement is available here.

Further information regarding the OSHA ETS is available here: COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov).

FAQ published by the NYS Department of Health regarding the mask mandate are available here: Frequently Asked Questions: Proof of Full Vaccination or Mask Requirement for Businesses and Venues | Department of Health (ny.gov).

Guidance on NYC’s private workplace vaccination requirement is available here: COVID-19: Vaccination Workplace Requirement - NYC Health.


Please contact a member of Herrick’s Employment Group with any questions.

Carol M. Goodman at +1 212 592 1465 or [email protected]
Jalise Burt at +1 212 592 1590 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]

© 2021 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.