OSHA sends ETS to White House for approval

In what is typically the last step in promulgating an emergency temporary standard (ETS), the Occupational Safety and Health Administration (OSHA) recently transmitted a new ETS on employers' COVID-19 vaccine and testing mandates for final review and approval to the Office of Information and Regulatory Affairs (OIRA), an arm of the White House's Office of Management and Budget (OMB). Although the new standard's actual issuance date remains unknown, we expect it to be in the near future.

For employers with 100 or more employees

In his Path Out of the Pandemic COVID-19 Action Plan unveiled on September 8, President Joe Biden announced OSHA would issue the ETS, requiring all employers with 100 or more employees to (1) be sure they are vaccinated or subject to weekly testing and (2) provide compensated time for receiving vaccinations and recovering from any side effects. The obligations are in addition to new federal contractor mandates.

After the OIRA's review, the new ETS will be published in the Federal Register and become effective immediately. It's difficult to predict how long the agency's review will take. It has up to 120 days to review a draft regulation, but we anticipate a very fast turnaround.

Our best guess is the ETS will be finalized within days and likely before the end of October. Meanwhile, the OMB is scheduling meetings with various stakeholder groups.

Future outlook