NRA Provides Update on OSHA’s Vaccine/Testing Emergency Temporary Standard (ETS)

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Recommendations for Industry

NRA Provides Update on OSHA’s Vaccine/Testing Emergency Temporary Standard (ETS)

On September 13, the National Restaurant Association provided an update on the status of OSHA’s ETS on the Biden Vaccination/Testing Mandate, including more information learned from a call hosted by senior OSHA officials.

Some of the key information from the update was that the ETS will be issued “expeditiously” in the coming weeks, with the 100+ employee threshold to be counted per company, not worksite. It will apply only to onsite workers, not remote employees who are physically isolated from co-workers.

Regarding compliance, for where OSHA has direct jurisdiction, the ETS will become effective immediately upon publication in the Federal Register. There are 22 states with State OSHA plans, and they will have 30 days to implement the federal ETS, or something equivalent to it. Those 22 OSHA-approved State Plans that cover both private and government workers are:

·         Alaska

·         Michigan

·         Tennessee

·         Arizona

·         Minnesota

·         Utah

·         California

·         Nevada

·         Vermont

·         Hawaii

·         New Mexico

·         Virginia

·         Indiana

·         North Carolina

·         Washington

·         Iowa

·         Oregon

·         Wyoming

·         Kentucky

·         Puerto Rico


·         Maryland

·         South Carolina


The does not include compliance information for the other states/territories, but does state that stakeholders will be able to comment (likely 60 days) for the final rule/permanent standard, but it will have no opportunity for input prior to publication of the ETS.

While OSHA also noted that appropriate accommodations will be provided for workers who are unable to be vaccinated due to disability related issues and/or religious reasons, but questions remain as to

the specific disability-based and religious exceptions and required documentation, as well as procedures for handling employees who refuse to get vaccinated or tested (i.e., ability to fire the employee), which officials said was outside the scope of the ETS.

Numerous other questions remain that we hope are addressed when the ETS is published.



Interesting to note, this week’s Government Stringency Index has increased from 19 (for the past few weeks) to 39; meaning that there have been an increase in government stringencies (which may include preventive measures, etc.).

There are 29 states with a Test Positive Rate (TPR) >10% and case rate >25 cases/100K people. This week, Alabama and Idaho have a Test Positive Rate of 21% while Tennessee has 19% and Mississippi and South Dakota’s TPR are at 18%.

Table 1.

However, as CIDRAP has reported later yesterday (and as we’ve discussed with you, here at TAG), we are seeing a decrease in cases (slowly but surely ). This can be evidenced in some of the states in case rates below; however, there are other states that have increased case rates including Alaska (which increased from 65 cases/100K a few weeks ago to now almost 90 cases/100K). States like Kentucky (91 cases/100K), Tennessee (100 cases/100K), and West Virginia (98 cases/100K) still have high case rates above 90 – 100 cases/100K persons. However, in other states, including Florida, Alabama, Louisana, Mississippi, case rates have decreased dramatically from where they had been, before! (Similar decreased can be seen in TPR and Rts).  

Table 2.

Table 3.

Table 4.

To that end, the percentage of the population (that is fully vaccinated) has also increased over the past few weeks:

Table 5.

Table 6.

Additionally, a recent finding in Massachusetts has noted that breakthrough cases of those fully vaccinated account for less than <1% of all COVID-19 cases (and of all the fully vaccinated individuals). This is further explored here wherein high vaccination areas do continue to have lower case rates/100K people.

Table 7.

In Case You Missed It

  • In Tuesday’s Recommendations for Industry, we discussed President Biden’s COVID-19 employee vaccination/testing mandate and how TAG can help you prepare. Read more here.
  • Both NY Times and CIDRAP report on a recent new review in The Lancet finding that “none of the data on coronavirus vaccines so far provides credible evidence in support of boosters for the general population”. As part of the discussion, “Boosters may be useful in some people with weak immune systems, they said, but are not yet needed for the general population”.
  • Three states (e.g., Vermont, Connecticut, and Massachusetts) have fully vaccinated more than 2/3 of residents. Over the last week, these three states have the lowest number of new COVID-19 cases per capita (CNN). In Massachusetts, the number of breakthrough cases represents 0.53% of over 4.5M people who have been vaccinated (NBC Boston). Despite this summer surge of the Delta variant of COVID-19, we are finally seeing signs of the variant waning (CIDRAP).
  • As part of Boris Johnson’s move to “outline a strategy to prevent any new surge in coronavirus infections from overwhelming the national health service over a winter”, UK health officials have authorized “a mass COVID vaccination program for 12- to 15-year old’s”. The UK is expected to move forward with the campaign using Pfizer’s vaccine.

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