In September of 2021, President Biden announced a new mandate for all employers with 100 or more employees to require either vaccination or weekly testing and use of face masks for all of their employees. The mandate was issued under the authority of the United States Occupational Safety and Health Administration’s (“OSHA”) right to take certain actions in emergency situations.
As a result, dozens of lawsuits have already been filed seeking to delay and/or overturn the mandate. At least one court has already issued a stay on the enforcement of the mandate pending a final determination.
On November 4, 2021, OSHA issued an Emergency Temporary Standard (ETS”) which sets forth rules and requirements related to this mandate. The ETS specifies that the mandate applies to employers with 100 or more employees total – meaning, that even if the employer has 10 employees at 10 different locations, the rules still apply to them. Part-time, seasonal, and full-time employees all get counted towards the total number of employees. Staffing agencies would still count all jointly-employed employees. However, independent contractors are not counted towards this total.