Federal COVID-19 Vaccine Mandate ETS

Federal OSHA Vaccination and Testing Mandate Emergency Temporary Standard (ETS)

Federal OSHA’s COVID-19 Vaccination and Testing ETS will be published in the federal register on November 5, 2021.  Information on the ETS can be found  at COVID-19 Vaccination and Testing.

You can find the published version at COVID-19 Vaccination and Testing ETS 

1.With federal OSHA’s adoption of a Vaccination and Testing Emergency Temporary Standard (ETS) for COVID-19 for employers with 100 or more employees, what will happen in Virginia?

The Department of Labor and Industry’s Virginia Occupational Safety and Health (VOSH) program is charged under Va. Code §40.1-1 with ensuring the protection of Virginia employees and employers under its jurisdiction in the private and public sectors from occupational safety and health hazards.

VOSH standards and regulations are adopted by the Virginia Safety and Health Codes Board (“Board”) in accordance with Va. Code §40.1-22(5) and -22(6a).

Standards adopted by Virginia’s State Plan for Occupational Safety and Health (VOSH) are required to be “at least as effective” as those adopted by OSHA in accordance with 29 USC 667(c)(2) of the OSH Act of 1970.

Federal OSHA’s Vaccination and Testing Mandate Emergency Temporary Standard will be published in the Federal Register on November 5, 2021, and the Board will meet to consider the ETS in accordance with the procedures outlined below in Code of Federal Regulations (CFR) Parts 1953(b)(1) and (b)(2):

1953.5(b). Emergency temporary standards.

1953.5(b)(1). Immediately upon publication of an emergency temporary standard in the Federal Register, OSHA shall advise the States of the standard and that a Federal program change supplement shall be required. This notification must also provide that the State has 30 days after the date of promulgation of the Federal standard to adopt a State emergency temporary standard if the State plan covers that issue. The State may demonstrate that promulgation of an emergency temporary standard is not necessary because the State standard is already the same as or at least as effective as the Federal standard change. The State standard must remain in effect for the duration of the Federal emergency temporary standard which may not exceed six (6) months.

1953.5(b)(2).  Within 15 days after receipt of the notice of a Federal emergency temporary standard, the State shall advise OSHA of the action it will take. State standards shall be submitted in accordance with the applicable procedures in §

1953.4(b) — Federal Program Changes, except that the required documentation or plan supplement must be submitted within 5 days of State promulgation. (Emphasis added).

While the Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220, addresses workplace hazards associated with COVID-19, it does not contain a vaccine mandate.

2. Does the federal OSHA ETS apply in Virginia during the 30 day period that the Safety and Health Codes Board has to adopt it?

No.  Because the Virginia Occupational Safety and Health (VOSH) State Plan has final approval from federal OSHA, the VOSH program has exclusive jurisdiction over the adoption of safety and health standards and regulations for the Commonwealth.  No federal OSHA standard can become effective in Virginia until it is adopted by the Virginia Safety and Health Codes Board (Board).

The Board has the option to adopt an identical version of the OSHA ETS.  The Board can take up to 30 days to adopt the OSHA ETS.

Federal OSHA’s Vaccination and Testing Mandate Emergency Temporary Standard (2nd COVID-19 ETS), 1910.501 et. seq., has been the subject of substantial litigation on the national level.  The several dozen court challenges have been consolidated in the 6th Circuit Court of Appeals, and it does not appear that any decision will be issued by the court prior to the current Safety and Health Codes Board (Board) meeting scheduled for December 3, 2021.

Accordingly, the 2nd COVID-19 ETS will not be on the December 3rd Board agenda.

For more information on the Virginia State Plan see:  https://www.osha.gov/stateplans/va

3. With federal OSHA’s adoption of a Vaccination and Testing Emergency Temporary Standard (ETS) for COVID-19 for employers with 100 or more employees, will the ETS apply to Virginia public sector employers and employees?

Yes.

16VAC25-60-30.A. provides that “All occupational safety and health standards adopted by the board shall apply to public employers and their employees in the same manner as to private employers.”

16VAC25-60-10 provides that the term ” “Public employer” means the Commonwealth of Virginia, including its agencies, authorities, or instrumentalities or any political subdivision or public body.”

NOTE:   In counting the number of employees for a specific employer, VOSH will use the number of employees at the highest level of the legal entity.  For instance, all state employees would be covered by the ETS because the Commonwealth of Virginia has 100 or more employees, as would employees of similarly situated city or county governments, public school systems, universities, public sector authorities and instrumentalities, etc.