Federal OSHA Allows “Vaccinate or Test”

Provides Option Other Than Forced Jab

On November 4, 2021, the US Department of Labor, Occupational Health and Safety Administration (OSHA) issued its awaited “Emergency Temporary Standard” regarding Covid-19 vaccination mandates.

OSHA is authorized to issue Emergency Temporary Standards (ETS) that take effect immediately and are in effect until superseded by a permanent standard. To be lawful, OSHA must determine that workers are in grave danger and an emergency standard is needed to protect them. OSHA publishes the ETS’s, where it serves as a proposed permanent standard. The validity of an ETS may be challenged in an appellate court.

There are two critical components to this ETS. First, under the rules, employers must implement a policy that requires employees to either (1) be fully vaccinated or (2) to provide proof of weekly COVID-19 testing and wear a face mask while indoors. This is welcomed news, as it now gives federal guidance that forced vaccinations are not the only option. Employees, choosing not to be vaccinated, will be in compliance with federal OSHA standards by wearing masks indoors and engaging in weekly testing. However, the ETS does not require employers to pay for this testing; but this issue is subject to California collective bargaining statutes, and is a matter that must be negotiated through impacts bargaining.

Second, the ETS expressly states that it “Preempts State and Local Laws.” The ETS makes clear that “OSHA intends the ETS to address comprehensively the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19”, and that this “standard is intended to preempt States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to these issues, except under the authority of a Federally-approved State Plan.” Consequently, any bargaining unit facing mandatory vaccination policies that deviate from this “Vaccinate or Test” ETS should argue that local policies and laws are preempted by this federal mandate, and are unenforceable.

Ferrone & Ferrone is California’s preeminent public safety law firm dedicated exclusively to protecting and enforcing the rights of first responders. FF is the only firm in the State to litigate privacy rights on behalf of firefighters and peace officers, from inception, all the way to the United States Supreme Court.

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