OSHA ETS Explanation

Federal Court Enjoins OSHA’s Vaccine Mandate. What Happens Now?

As mentioned in a previous blog post, the Biden Administration directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop an emergency temporary standard (ETS) requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated.

On November 4, OSHA released the full details of the rule, which became effective when it was published in the Federal Register the next day. Some of the takeaways include: 

• By December 4, employers must have all requirements in place, other than testing for employees who have not completed their entire primary vaccination dose.
• By January 4, 2022, employees must be fully vaccinated or face weekly testing.
• Unvaccinated workers who choose to get tested weekly must wear masks on the job at all times.
• Anyone who tests positive for COVID-19 must leave the workplace immediately. 
• Staffing agencies with 100 or more employees must comply with the new ETS.
• The ETS will not apply to remote workers or people who work outdoors exclusively. 
• Part-time employees and temporary or seasonal employees (not employed through a staffing agency) will be counted as part of the 100-employee threshold.

However, the rule has recently faced legal challenges that will delay—and could eventually prevent—its implementation. 

Federal Court Enjoins Mandate

On November 6, the ETS ran into a roadblock in the form of the Fifth Circuit Court of Appeals in New Orleans. The court issued a temporary stay of the ETS in order to allow further judicial review. 

Then on Friday, November 12, the court upheld its stay on the mandate, telling OSHA not to take any actions to implement or enforce the rule. In response, OSHA has suspended activities related to the implementation and enforcement of the ETS, pending future legal developments.

Because several states filed lawsuits attempting to block the ETS, they were all consolidated into one challenge to be heard and decided on by one Circuit Court of Appeals. On November 16, the Sixth Circuit Court of Appeals was selected to hear the case.

Ultimately, the ETS could end up in front of the Supreme Court. Despite the uncertainty, some legal experts are still advising companies to continue their preparations to comply with the rule, as those preparations could take weeks to complete.

However, there are helpful advantages and incentives for companies who work with Wonolo to find workers that can ease compliance with the rule.

Wonoloers Don’t Count Toward OSHA Standard 

Companies with 100 or more employees must comply with the ETS. However, the frequently asked questions (FAQs) on the ETS make it clear that independent contractors do not count toward the total number of employees. Specifically, FAQ 2.A.5 asks whether “independent contractors included in the 100-employee threshold.”  The response is clear: “No. Independent contractors do not count towards the total number of employees.”  People who use the Wonolo app to find jobs (“Wonoloers”) are independent contractors because, among other things, they control when, where, and how often they are willing to accept a job.  Because they are independent contractors we do not think they are included in the 100-employee threshold.

Finding Vaccinated Workers Is Easier with Wonolo

The ETS imposes strict guidelines for companies to monitor vaccination status, and Wonolo offers a feature that can help companies do this.

Wonoloers are able to self-certify their vaccination status on the platform if they have been fully vaccinated. Vaccinated workers can fill out a form to upload their vaccination card into the platform. Those workers then receive a COVID-19 Vaccination Badge, displaying their vaccination status to companies on the app*. 

Obtaining a COVID-19 Vaccination Badge is entirely optional for workers using the Wonolo platform, but it can lead to a more seamless process for connecting fully vaccinated workers with businesses. 

Talk with our team to learn how your company can leverage Wonolo to connect with the over 1 million experienced workers on the Wonolo platform and fill jobs quickly … and help answer questions about the mandate.

*Wonolo does not manually certify the accuracy of Vaccination Badge submissions at this time.

The information provided on this webpage is for general information purposes only and should not be viewed as legal or other professional advice.