Earlier this year, President Biden announced that he intended to direct the Occupational Safety and Health Administration (OSHA) to implement a rule to require that employers with more than 100 employees ensure that their employees are either vaccinated against COVID-19, or that unvaccinated employees provide a weekly negative test in order to continue to work. Today OSHA issued an Emergency Temporary Standard (ETS) that requires employers to enforce an employee vaccination requirement beginning within 60 days of the date of the rule’s publication.
As expected, the announcement of the ETS has prompted questions regarding the ETS’ scope and specific requirements. OSHA has provided an FAQ on its website that answers a number of questions regarding the ETS. Among those questions is whether the ETS applies to public sector employers with 100 or more employees in Wisconsin. OSHA is a federal agency that governs private sector workplaces and public sector workplaces in states with “State Plans” approved by OSHA. Wisconsin does NOT have a State Plan and therefore the ETS does not apply to Wisconsin public sector employers (i.e. public school districts, cities, counties, towns, villages, etc.). The applicable FAQ, number 2.E. states the following:
2.E. Would a state or local government employer with more than 100 employees be subject to this ETS?
The ETS does not apply to state and local government employers in states without State Plans, because state or local government employers and employees are exempt from OSHA coverage under the OSH Act (29 U.S.C. 652 (5)). However, in states with OSHA-approved occupational safety and health programs (“State Plans”), state and local government employers with 100 or more employees will be covered by State occupational safety and health requirements, and State Plans must adopt requirements for state and local employers that are at least as effective as federal OSHA’s requirements in this ETS. State Plans may also choose to adopt more protective occupational safety and health requirements (29 USC 667(c)).
At this point, Wisconsin’s local government employers are not required to enforce the vaccination mandate on employees nor are they required to enforce a weekly testing requirement for unvaccinated employees unless such a requirement is imposed on a local level.
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Geoffrey A. Lacy
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