to make this rule effective upon publication because notice and public
procedure with respect to this ETS are both impracticable and contrary
to the public interest, given the expedited timeline on which this
standard was developed and the grave danger threatening workers' lives
and health (see Grave Danger and Need for the ETS, both in Section III.
of this preamble). Congress authorized OSHA to take swift action in
promulgating an ETS to address this type of grave danger, and provided
explicitly that an ETS is effective upon publication, 29 U.S.C.
655(c)(1); delaying the effective date of such an expedited process
would thwart that purpose. It is specifically because of the emergency
nature of this rulemaking that the OSH Act allows for OSHA to proceed
without the extensive public input the agency normally solicits in
issuing occupational safety and health standards. 29 U.S.C. 655(c)(1).
For rules to which section 808(2) applies, the agency may set the
effective date. In this case, consistent with the OSH Act requirement
cited above, the ETS takes immediate effect upon publication in the
Federal Register.

F. Administrative Procedure Act

    The Administrative Procedure Act (APA) normally requires notice and
comment, and a 30-day delay of the effective date of a final rule, for
recordkeeping and reporting regulations promulgated under section 8(c)
of the OSH Act. 29 U.S.C. 657(c); 5 U.S.C. 553(b), (d). This ETS
contains recordkeeping and reporting requirements tailored to address
COVID-19 illness. To the extent that these requirements are not already

exempt from the APA's requirements for notice and comment under section
6(c) of the Act (29 U.S.C. 655(c)), OSHA invokes the ``good cause''
exemption to the APA's notice requirement because the agency finds that
notice and public procedure are impracticable and contrary to the
public interest under 5 U.S.C. 553(b)(B). As explained in more detail
in Grave Danger and Need for the ETS (both in Section III. of this
preamble), this finding is based on the critical importance of
implementing the requirements in this ETS, including the recordkeeping
and reporting provisions, as soon as possible to address the grave
danger that COVID-19 presents to workers.
    As noted above, the ETS is required by the OSH Act to take
immediate effect upon publication. 29 U.S.C. 655(c)(1). For that
reason, and the underlying public health emergency that prompted this
ETS as discussed above, OSHA finds good cause to waive the normal 30-
day delay in the effective date of a final rule from the date of its
publication in the Federal Register. See 5 U.S.C. 553(d)(3). OSHA
notes, however, that OSHA does not require compliance with any
provision of the ETS within the first 30 days after it becomes
effective.

G. Consensus Standards

    OSHA must consider adopting an existing national consensus standard
that differs substantially from OSHA's standard if the consensus
standard would better effectuate the purposes of the Act. See section
12(d)(1) of the National Technology Transfer and Advancement Act of
1995 (15 U.S.C.A. 272 Note); see also 29 U.S.C. 655(b)(8).
    OSHA considered incorporation of ASTM F3502-21 in this ETS, as
required. However, the agency has insufficient evidence to make a
general finding of feasibility at this time. The agency notes that face
coverings that meet ASTM F3502-21 criteria also meet the definition of
``face coverings'' in this ETS (see the discussion of this issue in
Summary and Explanation, Section VI. of this preamble). The agency has
asked questions about this topic to gather additional information.

H. Executive Order 13045

    Executive Order 13045, on Protection of Children from Environmental
Health Risks and Safety Risks, requires that Federal agencies
submitting covered regulatory actions to OIRA for review pursuant to
Executive Order 12866 must provide OIRA with (1) an evaluation of the
environmental health or safety effects that the planned regulation may
have on children, and (2) an explanation of why the planned regulation
is preferable to other potentially effective and reasonably feasible
alternatives considered by the agency (62 FR 19885 (April 23, 1997)).
Executive Order 13045 defines ``covered regulatory actions'' as rules
that may (1) be economically significant under Executive Order 12866,
and (2) concern an environmental health risk or safety risk that an
agency has reason to believe may disproportionately affect children.
Because OSHA has no reason to believe that the risk from COVID-19
disproportionately affects children, the ETS is not a covered
regulatory action and OSHA is not required to provide OIRA with further
analysis under section 5 of the executive order. However, to the extent
children are exposed to COVID-19 either as employees or at home as a
result of family members' workplace exposures to COVID-19, the ETS
should provide some protection for children.

I. Federalism

    The agency reviewed this ETS according to Executive Order 13132, on
Federalism, which requires that Federal agencies, to the extent
possible, refrain from limiting State policy options, consult with
States before taking actions that would restrict States' policy
options, and take such actions only when clear constitutional authority
exists and the problem is of national scope. 64 FR 43255 (August 10,
1999). The Executive Order generally allows Federal agencies to preempt
State law only as provided by Congress or where State law conflicts
with Federal law. In such cases, Federal agencies must limit preemption
of State law to the extent possible.
    The Occupational Safety and Health Act is an exercise of Congress's
Commerce Clause authority, and under Section 18 of the Act, 29 U.S.C.
667, Congress expressly provided that States may adopt, with Federal
approval, a plan for the development and enforcement of occupational
safety and health standards. OSHA refers to States that obtain Federal
approval for such plans as ``State Plans.'' Occupational safety and
health standards developed by State Plans must be at least as effective
in providing safe and healthful employment and places of employment as
the Federal standards. As discussed below, State Plans must submit to
Federal OSHA for approval, standards that differ from Federal standards
addressing the same issues, in order for such standards to become part
of the OSHA-approved State Plan. Subject to these requirements, State
Plans are free to develop and enforce their own occupational safety and
health standards.
    This ETS complies with E.O. 13132. The problems addressed by this
ETS for COVID-19 are national in scope. As explained in Grave Danger
(Section III.A. of this preamble), employees face a grave danger from
exposure to COVID-19 in the workplace. Employees across the country
face the danger of exposure to COVID-19 at work, and as explained in
Need for the ETS (Section III.B. of this preamble), a national standard
is needed to protect workers from the grave danger of COVID-19 by
strongly encouraging vaccination and limiting the presence of COVID-19
positive workers in the workplace through testing and to ensure that a
clear and consistent baseline approach is taken across the country to
protect them. The SARS-CoV-2 virus is highly communicable and infects
workers without regard to state borders, making a national approach
necessary. Accordingly, the ETS establishes minimum requirements for
employers in every State to protect employees from the risks of
exposure to COVID-19.
    In States without OSHA-approved State Plans, Congress provides for
OSHA standards to preempt State occupational safety and health
standards for issues addressed by the Federal standards. In these
States, this ETS limits State policy options in the same manner as
every standard promulgated by the agency. Furthermore, as discussed in
the Summary and Explanation for Purpose, nothing in the ETS is intended
to limit generally applicable public health measures instituted by
state or local governments that go beyond, and are not inconsistent
with, the requirements of the ETS. (See Summary and Explanation for
Purpose, Section VI.A. of this preamble); Gade v. National Solid Wastes
Management Ass'n, 505 U.S. 88, 107 (1992). In States with OSHA-approved
State Plans, this ETS does not significantly limit State policy
options. Any special workplace problems or conditions in a State with
an OSHA-approved State Plan may be dealt with by that State's standard,
provided the standard is at least as effective as this ETS.
    As discussed in the Summary and Explanation for Purpose in this
preamble, OSHA has included a provision that states the purpose of this
ETS, as well as OSHA's intent to preempt all inconsistent State and
local requirements that relate to the issues addressed by this ETS.
(See section 1910.501(a); Summary and Explanation for Purpose, Section
VI.A. of this preamble). This includes State and local

requirements banning or limiting the authority of employers to require
vaccination, face covering, or testing. As discussed in that section,
such State and local bans would be preempted by this ETS, even in
States with OSHA-approved State Plans, because such bans are not
approved by federal OSHA as part of the State Plan and could not be
approved, because such bans are clearly not as effective--and, indeed,
are contrary to--the federal ETS. See Indust. Truck Ass'n v. Henry, 125
F.3d 1305, 1311 (9th Cir. 1997).

J. State Plans

    When Federal OSHA promulgates an emergency temporary standard,
States and U.S. Territories with their own OSHA-approved occupational
safety and health plans (``State Plans'') must either amend their
standards to be identical or ``at least as effective as'' the new
standard, or show that an existing State Plan standard covering this
area is ``at least as effective'' as the new Federal standard. 29 CFR
1953.5(b). This ETS imposes new requirements to protect workers across
the nation from COVID-19. Adoption of this ETS, or an ETS that is at
least as effective as this ETS, by State Plans must be completed within
30 days of the promulgation date of the final Federal rule, and State
Plans must notify Federal OSHA of the action they will take within 15
days. The State Plan standard must remain in effect for the duration of
the Federal ETS. As noted above in Federalism (Section V.I. of this
preamble), this ETS preempts all State and local requirements,
including in States with State Plans, that ban or limit the authority
of employers to require vaccination, face covering, or testing. (See
also the Summary and Explanation for Purpose, Section VI.A. of this
preamble). As with all non-identical State Plan standards, OSHA will
review any comparable State standards to determine whether they are at
least as effective as this ETS. A State Plan standard that prohibits
employers from requiring vaccination would not be at least as effective
as this ETS because OSHA has recognized in this ETS that vaccination is
the most protective policy choice for employers to adopt to protect
their workplaces.
    Of the 28 States and Territories with OSHA-approved State Plans, 22
cover both public and private-sector employees: Alaska, Arizona,
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico,
South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and
Wyoming. The remaining six States and Territories cover only state and
local government employees: Connecticut, Illinois, Maine, New Jersey,
New York, and the Virgin Islands.

K. Paperwork Reduction Act

I. Overview
    The Emergency Temporary Standard (ETS) for COVID-19 Vaccination and
Testing contains collection of information requirements that are
subject to review by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501, et seq., and
OMB's regulations at 5 CFR part 1320. The PRA defines a collection of
information to mean the obtaining, causing to be obtained, soliciting,
or requiring the disclosure to third parties or the public, of facts or
opinions by or for an agency, regardless of form or format (44 U.S.C.
3502(3)(A)). OSHA has determined an ETS is necessary to protect workers
from the grave danger posed by COVID-19 and is issuing an ETS that
amends 29 CFR 1910 subpart U to provide COVID-19 protections to workers
of employers with 100 or more employees. Section 1910.501 contains
collections of information necessary to effectuate the purpose of the
ETS. The collections of information appear in paragraphs 1910.501(d),
(e)(2), (e)(4), (f)(1), (g)(1), (g)(4), (h)(1), (j), (k)(1), (k)(2),
(l)(1), and (l)(2). For a more comprehensive discussion of these
provisions, see the sectional analysis earlier in this preamble. These
information collections are applied by cross reference to other
industries in regulations 29 CFR 1915.1501 (Shipyard Employment),
1917.31 (Marine Terminals), 1918.110 (Longshoring), 1926.58
(Construction), 1928.21 (Agriculture).\79\
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    \79\ The ETS applies to agricultural establishments with 11 or
more employees engaged on any day in hand-labor occupations in the
field and agricultural establishments that maintain a temporary
labor camp, regardless of how many employees are engaged on any day
in hand-labor occupations in the field).
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    Under the PRA, a Federal agency cannot conduct or sponsor a
collection of information unless OMB approves it and the agency
displays a currently valid OMB control number (44 U.S.C. 3507).
Notwithstanding any other provision of law, if a collection of
information does not display a currently valid control number, an
employer shall not be subject to penalty for failing to comply with the
collection of information (44 U.S.C. 3512). The PRA has special
provisions for emergency situations that are applicable to this ETS.
OMB may authorize a collection of information without regard to the
normal clearance procedures if either (a) the relevant agency
determines that the collection of information is essential to the
mission of the agency and public harm is reasonably likely to result if
normal clearance procedures are followed, or (b) the use of normal
clearance procedures is reasonably likely to cause a statutory or court
ordered deadline to be missed (44 U.S.C. 3507(j) and 5 CFR 1320.13).
Because COVID-19 presents an ongoing public health threat to workers
and American businesses, OSHA has requested the use of these emergency
procedures for this ETS. In accordance with 44 U.S.C. 3507(j)(1), OMB
approved the request and assigned this ETS an OMB control number that
is valid for 180 days. Therefore, the information collection provisions
contained within this ETS will take effect at the same time as all
other provisions.
II. Summary of Information Collection Requirements
    This information collection is summarized as follows.
    1. Title: COVID-19 Vaccination and Testing Emergency Temporary
Standard (29 CFR 1910, subpart U; 1915, subpart Z; 1917, subpart B;
1918, subpart K; 1926, subpart D; 1928, subpart B).
    2. Type of Review: Emergency.
    3. OMB Control Number: 1218-0278.
    4. Affected Public: This rule applies to employers with a total of
100 or more employees except where the workplace is covered under the
Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance
for Federal Contractors and Subcontractors; or in setting where the
employee provides healthcare services or healthcare support services
that falls under the requirements of 29 CFR 1910.502. This rule does
not apply to employees of covered employers who work from home,
exclusively outdoors, or who do not report to a workplace where other
individuals such as coworkers or customers are present.
    5. Description of the ICR. This ICR contains collections of
information requirements for employers with 100 or more employees. The
employer must establish, implement, and enforce a written mandatory
vaccination policy that requires each employee to be fully vaccinated
against COVID-19 unless the employer implements a policy that allows
employees to choose between being fully vaccinated or both tested and
wearing a face covering. Employers must determine employee vaccination
status, and must require than any employees who are not vaccinated be
tested for COVID-19 at least once every

7 days. Employers must provide specified information to employees
regarding COVID-19 vaccine efficacy, safety, and the benefits of being
vaccinated, and must maintain a record of the COVID-19 vaccination
status, proof of vaccination, and copies of employee COVID-19 test
results, and the aggregate number of fully vaccinated employees at a
workplace along with the total number of employees at that workplace.
    6. Number of respondents: 1,858,935.
    7. Frequency: Varies.
    8. Number of Responses: 205,262,803.
    9. Estimated Burden Hours: 79,720,444.
    10. Estimated Cost (Capital-operation and maintenance):
$1,383,751,520.
    These totals are explained and supported in the agency's Supporting
Statement as required by the PRA.
III. Request for Comment
    Although the ETS takes effect immediately, with implementation
dates specified in the Dates provision of this publication, it also
serves as a temporary standard that can only be made permanent
following an opportunity for public notice and comment. OSHA therefore
invites the public to submit comments to OSHA on the proposed
collections of information with regard to the following.
     Whether the proposed collections of information are
necessary for the proper performance of the Agency's functions,
including whether the information is useful.
     The accuracy of OSHA's estimate of the burden (time and
cost) of the collections of information, including the validity of the
methodology and assumptions used.
     The quality, utility, and clarity of the information
collected.
     Ways to minimize the compliance burden on employers, for
example, by using automated or other technological techniques for
collecting and transmitting information.
    Please submit comments related to the Paperwork Act analysis to
OSHA in the PRA docket (Docket Number OSHA-2021-0008). Comments related
to other parts of the ETS should be submitted to the rulemaking docket
(Docket Number OSHA-2021-0007). OSHA will accept comments for 60 days
on the information collection aspects of the rule. For instructions on
submitting these comments to the rulemaking and/or PRA docket, see the
sections of this Federal Register notice titled DATES and ADDRESSES.

References

Occupational Safety and Health Administration (OSHA). (2021c,
October). Health Impacts of the COVID-19 Vaccination and Testing
ETS. (OSHA, October 2021c)

VI. Summary and Explanation

A. Purpose

    The ETS includes a sentence that states the purpose of the rule.
The first part of the sentence in the paragraph indicates that the
standard addresses the grave danger of COVID-19 in the workplace by
establishing workplace vaccination, vaccination verification, face
covering and testing requirements.
    The second part of the sentence addresses the preemption of State
and local laws, regulations, executive orders, and other requirements,
by this Federal standard. It indicates OSHA's intention that the ETS
address comprehensively the occupational safety and health issues of
vaccination, wearing face coverings, and testing for COVID-19, and thus
that the standard is intended to preempt States, and political
subdivisions of States, from adopting and enforcing workplace
requirements relating to these issues, except under the authority of a
Federally-approved State Plan. In particular, OSHA intends to preempt
any State or local requirements that ban or limit an employer's
authority to require vaccination, face covering, or testing.
    Preemption of such State and local requirements derives from
section 18 of OSH Act and general principles of conflict preemption.
See Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88
(1992).\80\ Gade clarified two important principles. First, section 18
expresses Congress' intent to preempt State workplace safety or health
laws relating to issues on which Federal OSHA has promulgated
occupational safety and health standards. Under section 18, a State can
avoid preemption of such laws only if it submits and receives Federal
approval for a State Plan for the development and enforcement of
standards. OSHA-approved State Plans operate under authority of State
law and must adopt occupational safety and health standards which,
among other things, must be at least as effective in providing safe and
healthful employment and places of employment as Federal standards. 29
U.S.C. 667.
---------------------------------------------------------------------------

    \80\ The Court held that the dual impact licensing statutes were
preempted; however, no rationale commanded a majority. A four-
justice plurality found that supplementary State regulation is
impliedly preempted. Id. at 98-99. Justice Kennedy's concurrence
would have found express preemption rather than implied preemption,
Id. at 110-111, but otherwise agreed that ``in the OSH statute
Congress intended to pre-empt supplementary state regulation.'' Id.
at 113.
---------------------------------------------------------------------------

    Second, State and local laws that do not constitute occupational
safety or health laws because they are ``laws of general
applicability'' that regulate workers and nonworkers alike are
preempted only if they conflict with the federal standard. Laws of
general applicability that are consistent with the federal standard are
not preempted. Gade, 505 U.S. at 107.
    While section 18 applies to every occupational safety and health
standard that OSHA promulgates, this ETS raises particular concerns
because of the current landscape of existing State and local
requirements that may overlap with, or directly conflict with, the
requirements of this ETS. As discussed in Need for the ETS (Section
III.B. of this preamble), OSHA is adopting this ETS in response to an
unprecedented health crisis that has resulted in a global pandemic
severely impacting the health and wellbeing of people in the United
States, and globally. This ETS is issued based on OSHA's determination
that employees in the United States face a grave danger from workplace
exposures to SARS-CoV-2, that the ETS is necessary to protect those
workers, and that the measures for vaccination, vaccine verification,
face coverings, and testing that this ETS requires will help ensure
that workers covered by the ETS are protected from severe illness and
death resulting from contracting COVID-19 in the workplace.
    As explained in Need for the ETS (Section III.B. of this preamble),
the lack of a national standard on this hazard has led to disparate
State and local requirements, and this underscores the need for OSHA's
ETS to provide clear and consistent protection to employees across the
country. Over the past months, an increasing number of States have
passed laws or enacted other requirements banning workplace vaccination
policies that would mandate vaccination or require proof of vaccination
status, thus prohibiting employers operating in those jurisdictions
from implementing this proven method of protecting workers from the
hazard of COVID-19 that is at the core of this ETS (see, e.g., Texas
Executive Order GA-40, October 11, 2021; Montana H.B. 702, July 1,
2021; Arkansas S.B. 739, October 4, 2021 and Arkansas H.B. 1977,
October 1, 2021; AZ Executive Order 2021-18, Aug. 16, 2021). While some
States' bans have focused on preventing local governments from
requiring their public employees to be vaccinated or show proof of
vaccination, the Texas, Montana, and Arkansas requirements apply to
private employers as well. Likewise, some States and localities

have enacted requirements that prohibit businesses, government offices,
schools or other public spaces from requiring that face coverings be
worn (see, e.g., Florida Executive Order 21-102, May 3, 2021; Texas
Executive Order GA-34, March 2, 2021; Texas Executive Order GA-36, May
18, 2021). State and local requirements that prohibit employers from
implementing employee vaccination mandates, or from requiring face
coverings in workplaces, serve as a barrier to OSHA's implementation of
this ETS, and to the protection of America's workforce from this deadly
virus.
    As discussed below, state restrictions of this kind are clearly
preempted whether they take the form of direct workplace regulation or
are part of a law of general applicability because they relate to the
issues addressed by this standard and conflict with it. Gade, 505 U.S.
at 99, 107. As is also discussed below, this is true even for State or
local requirements that may not prevent employers from compliance with
the ETS, but that prescribe or limit the employer's ability to mandate
vaccination for its workforce as the employer's chosen means of
compliance. See Gade, 505 at 107; see also Geier v. American Honda, 529
U.S. 861, 869, 875-886 (2000) (finding Department of Transportation
(DOT) regulations preempted a State tort action where the state action
``upset the careful regulatory scheme established by federal law'' and
placing weight on DOT's interpretation that such tort suit would be
``an obstacle to the accomplishment and execution'' of Agency
objectives). An employer's choice to mandate vaccination is a critical
aspect of this ETS, and state laws that remove that choice conflict
with it.
    Thus, to ensure that the ETS supplants the existing State and local
vaccination bans and other requirements that could undercut its
effectiveness, and to foreclose the possibility of future bans, OSHA
has clearly defined the issues addressed by this section to encompass
vaccination, face covering, and testing needed to protect against
transmission of COVID-19 to employees in the workplace. To avoid
ambiguity, OSHA has stated expressly that it intends this ETS to
preempt all State and local workplace requirements that ``relate'' to
these issues, except pursuant to a State Plan. 29 U.S.C. 667(b).
    The ``unavoidable implication'' of section 18 is that because OSHA
has adopted this ETS, States may no longer regulate these issues except
with OSHA's approval and the authority of a Federally-approved State
Plan. Gade, 505 U.S. at 99. As the Court explained, section 18 preempts
States without approved plans from adopting or enforcing any laws that
constitute, ``in a direct, clear and substantial way regulation of
worker health and safety'' relating to an issue addressed by an OSHA
standard. Id. at 107.
    State and local requirements that ban or otherwise limit workplace
vaccination, face covering, or testing clearly ``relate'' to the
occupational safety and health ``issues'' that OSHA is regulating in
this ETS. 29 U.S.C. 667(b). Such bans regulate key workplace COVID-19
protections that are encompassed by this ETS ``in a direct, clear and
substantial way.'' Gade, 505 U.S. at 107. The direct effect of such
bans is to prohibit employers from requiring employees to implement
measures, such as vaccination requirements, face coverings, or testing.
These workplace protective measures are covered by, and, in many
circumstances required by, this ETS. For example, vaccination mandate
bans directed at employers specifically bar them from requiring
employee vaccination requirements for the purposes of protecting their
workforce. Prohibitions on face covering mandates likewise directly
prohibit individuals in positions of authority, including employers,
from requiring face covering use.
    Although the expressly stated purposes for State and local
requirements banning or limiting employers from requiring vaccinations,
face coverings, or testing may not be occupational safety and
health,\81\ this does not control their preemption under section 18 of
the OSH Act. In assessing State and local requirements' impact on a
federal statutory scheme, courts ``have refused to rely solely on the
legislature's professed purpose and have looked as well to the effects
of the law.'' Gade, 505 U.S. at 105; see also, e.g., Perez v. Campbell,
402 U. S. 637, 651-652 (1971) (``[A]ny state legislation which
frustrates the full effectiveness of federal law is rendered invalid by
the Supremacy Clause''); Napier v. Atlantic Coast Line R. Co., 272 U.S.
605, 612 (1926) (pre-emption analysis does not depend on whether
federal and State laws ``are aimed at distinct and different evils''
but whether they ``operate upon the same object'').
---------------------------------------------------------------------------

    \81\ The express purposes of such requirements banning or
limiting employers from requiring vaccination, face coverings, or
testing may often not relate to occupational safety and health. For
example, Governor Greg Abbott's Texas face covering mandate ban in
Executive Order GA-16, is based on alleged decreasing COVID-19 rates
and the need to alleviate ``confusion,'' (Texas Executive Order GA-
36, May 18, 2021); the stated purpose of Montana's vaccination
mandate ban is to address health care privacy interests (Montana
H.B. 702, July 1, 2021).
---------------------------------------------------------------------------

    That a State has articulated a purpose other than, or in addition
to, workplace health and safety would not divest the OSH Act of its
preemptive force, because preemption law looks to the effects as well
as the purpose of a State law, and thus a dual-impact State law cannot
avoid OSH Act preemption simply because the regulation serves several
objectives. Gade, 505 U.S. at 107 (holding ``a law directed at
workplace safety is not saved from pre-emption simply because the State
can demonstrate some additional effect outside of the workplace'' and
``[t]hat such law may also have a nonoccupational impact does not
render it any less of an occupational standard for purposes of pre-
emption analysis''). Thus, to the extent that the stated purpose of a
requirement that bans or limits employers from requiring vaccinations,
face coverings, or testing is something other than, or in addition to,
occupational health, such laws, which have a specific and direct impact
on worker health, are nevertheless preempted.
    Further, section 18 preempts even ``nonconflicting'' State and
local occupational safety and health requirements relating to the
issues addressed by this standard. Gade, 505 U.S. at 98-99, 103; see
id. at 100 (``state laws regulating the same issue as federal laws are
not saved, even if they merely supplement the federal standard''). This
is because OSHA ``'pre-empts the field' for any nonapproved State law
regulating the same safety and health issue.'' See Gade, 505 U.S. at
104, n. 2, citing English v. General Electric. Co., 496 U.S. 72, 79-80,
n.5 (``[F]ield preemption may be understood as a species of conflict
pre-emption: A State law that falls within a pre-empted field conflicts
with Congress' intent (either express or plainly implied) to exclude
state regulation''); see also id. at 105 (discussing effect of field
preemption). See generally Geier, 529 U.S. at 869, 875-886 (finding
State law preemption where it ``upset the careful regulatory scheme
established by federal law''); Williamson v. Mazda Motor of Am., Inc.,
562 U.S. 323, 330-36 (2011) (affirming the conflict pre-emption
principle that ``a state law that stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of a
federal law is pre-empted'' and finding preemption where State law
interfered with ``significant objective'' of the federal regulation).
    For example, the ETS would preempt State or local governments from

dictating that employers adopt a scheme of testing and face coverings
that complies with 1910.501(g) and (i) of the ETS, but that bars
employers from electing the preferred vaccine mandate alternative in
paragraph (d), because this interferes with OSHA's significant
regulatory objectives and its preemption of the field.\82\ (See Need
for the ETS (Section III.B. of this preamble) discussing that
vaccination is the preferred compliance option under this rule because
it is the most effective method of protecting workers from COVID-19).
Likewise, the ETS would preempt such State or local occupational
requirements, even to the extent that they may regulate employers with
fewer than 100 employees, notwithstanding that the requirements in this
ETS only apply to employers with more than 100 employees.
---------------------------------------------------------------------------

    \82\ OSHA is aware that some States have adopted or are
considering adopting such requirements, which this ETS would preempt
(see, e.g., Arkansas S.B. 739, October 4, 2021 and Arkansas H.B.
1977, October 1, 2021, which Arkansas Governor Asa Hutchinson
allowed to became law without his signature, and which require
employers in Arkansas to allow employees to opt out of vaccination
for purposes of complying with federal vaccination requirements; see
also Governor Hutchinson, October 13, 2021; Marr, October 7, 2021
(describing the Arkansas legislation and noting that other states
may contemplate similar legislation)).
---------------------------------------------------------------------------

    Case law is instructive on this point. In Gade, the Supreme Court
found regulations implementing a State statute that required training
for workers handling hazardous waste that went beyond, but did not
conflict with, OSHA's hazardous waste training requirements to be
preempted by the OSHA requirements. Id. Likewise, in Industrial Truck
Association Incorporated v. Henry, the Ninth Circuit found that OSHA's
hazard communication standard preempted California's Hazard
Communication regulations that were not submitted to OSHA for approval
through its State Plan, even to the extent that California's Hazard
Communication rule regulated manufacturers and distributers who were
excluded from coverage under federal OSHA's rule. Indust. Truck Ass'n
v. Henry, 125 F.3d 1305, 1311-14 (9th Cir. 1997). In the same way, the
ETS preempts all State and local requirements that bar or limit the
ability of an employer to require workplace vaccination, testing, and
face coverings to protected employees against COVID-19 in any respect,
since OSHA has occupied the entire field of regulation on these issues.
    OSHA's definition of the ``issue'' in this rule should be afforded
weight, since the OSH Act vests OSHA with standard-setting
responsibility and, therefore, the authority to determine which
``issues'' to address with occupational safety and health standards.
See Indust. Truck, 125 F.3d at 1311 (relying on OSHA's regulation and
statements in the preamble to identify the relevant ``issue'' for
preemption purposes in OSHA's Hazard Communication standard).
    Importantly, although OSHA's stated intention is to preempt
conflicting State and local requirements relating to the issues
addressed by this standard, OSHA recognizes that the OSH Act does not
allow, and OSHA does not intend, for the ETS to preempt non-conflicting
State or local requirements of general applicability. In Gade, the
Supreme Court qualified its ruling by saving from preemption non-
conflicting State and local ``laws of general applicability (such as
laws regarding traffic safety or fire safety) that do not conflict with
OSHA standards and that regulate the conduct of workers and nonworkers
alike.'' Gade, 505 U.S. at 107. The Majority reasoned that,
``[a]lthough some laws of general applicability may have a `direct and
substantial' effect on worker safety, they cannot fairly be
characterized as `occupational' standards, because they regulate
workers simply as members of the general public.'' Id.
    During the pandemic, many States and municipal governments have
adopted requirements intended to protect public health by helping to
prevent the spread of COVID-19 in public spaces. These have included
requirements mandating face coverings in indoor public spaces,
including businesses, government buildings, and schools (see, e.g.,
Baltimore City Health Department, August 10, 2021; Illinois Executive
Order 2021-20, August 26, 2021; Hawai'i Emergency Proclamation, October
1, 2021). In addition, in recent months, some States and municipal
governments have adopted requirements mandating that members of the
public provide proof of vaccination or recent COVID-19 testing in order
to enter restaurants, bars, or other businesses or public spaces (see,
e.g., NYC Emergency Executive Order 225, August 16, 2021 (mandating
COVID-19 vaccination for most individuals for indoor entertainment,
recreation, dining and fitness settings)). Requirements such as these
apply to ``workers and nonworkers alike'' and ``regulate workers simply
as member of the general public'' and are accordingly not preempted.
Gade, 505 U.S.at 107.
    Based on OSHA's observations and experience during the past year
and a half that the pandemic has been ongoing, OSHA is confident that
protective State and local regulations of general applicability that
mandate face coverings or vaccination will complement, rather than
interfere with OSHA's enforcement of the ETS, and also does not intend
to preempt such requirements. Indeed, OSHA believes that such measures
have significantly reduced the harmful effects of the pandemic and
total fatalities. See Steel Institute of NY v. The City of NY, 716 F.3d
31, 38 (affording some weight to OSHA's view that municipal regulations
governing construction cranes did not interfere with OSHA's regulatory
scheme in its crane standards and ultimately adopted OSHA's view in
finding these municipal regulations were not preempted by OSHA crane
standards).\83\
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    \83\ OSHA's Cranes and Derricks in Construction rule directly
discussed its expectations and intent regarding the preemptive
effect of the rule, including that it was not intended to preempt
generally applicable municipal regulations, such as building codes,
which serve public safety purposes. Cranes and Derricks in
Construction, 75 FR 47,906, 48,128 (August 9, 2010). This rule also
includes a provision that requires employers to comply with State
crane operator licensing requirements that meet the federal floor
for crane operator certification in the rule. 29 CFR
1926.1427(c)(1). OSHA has also indicated that its rule would not
preempt State or local requirements in other rulemakings. See e.g.,
72 FR 7136, 7188 (Feb. 14, 2007) (Preamble to OSHA's most recent
electrical safety standard) (``State and local fire and building
codes, which are designed to protect a larger group of persons than
employees,'' are not preempted); 29 CFR 1910.134(e) (requiring
compliance with State and local laws by requiring ``a licensed
health care professional'' to perform a medical evaluation of an
employee's ability to use a respirator).
---------------------------------------------------------------------------

    In Steel Institute, the Second Circuit held that OSHA's crane
regulations did not preempt New York City municipal regulations
governing construction cranes, finding that such regulations were
requirements of general applicability, notwithstanding their direct
bearing on worker safety, because their primary purpose and effect was
to preserve the safety of the general public, and they regulated
workers and nonworkers alike. Id. The Steel Institute court noted the
``strong presumption against preemption when states and localities
``exercise[ ] their police powers to protect the health and safety of
their citizens.'' Id. at 36, citing Medtronic, Inc. v. Lohr, 518 U.S.
470, 475 (1996). The Second Circuit was also influenced by the clear
danger presented to the public by unsafe crane operation. This is
analogous to the situation here, because exposure to COVID-19 is a
hazard that directly impacts everyone. Thus, generally applicable State
and local mandates requiring face coverings or vaccination should not
be preempted and should

remain in effect, notwithstanding this ETS.\84\
---------------------------------------------------------------------------

    \84\ In addition, some State and local governments have adopted
vaccination mandates directed at State and/or local government
employees. The OSH Act and OSHA's standards would not preempt such
requirements since State or local government employers and employees
are exempt from OSHA coverage under the OSH Act. 29 U.S.C. 652 (5)
(defining employer to exclude ``any State or political subdivision
of a State''). However, many State and local government employers in
States with OSHA-approved State Plans will be covered by State
occupational safety and health requirements, and State Plans must
adopt requirements for State and local government employers, as well
as covered private sector employers, that are at least as effective
as federal OSHA's requirements; State Plans may also choose to adopt
more protective occupational safety and health requirements. 29
U.S.C. 667(c).
---------------------------------------------------------------------------

    On the other hand, as noted above, this standard will preempt
requirements that conflict with it, regardless of whether the
requirements are part of a law of general applicability.\85\
---------------------------------------------------------------------------

    \85\ As previously discussed, bans on mandating vaccinations or
face coverings have not typically been generally applicable, but
even the least workplace-specific, most generally applied bans will
not survive preemption because they directly interfere with the
ETS's regulatory scheme.
---------------------------------------------------------------------------

    The effect of the ETS on State law requirements in State Plan
States works somewhat differently. As previously noted, under section
18 of the OSH Act States that wish to assume responsibility for the
development and enforcement of ``occupational safety and health
standards relating to any occupational safety or health issue with
respect to which a Federal standard has been promulgated'' may submit a
State Plan to OSHA for approval. Id. section 667(b); see also id.
section 667(c) (describing requirements for OSHA approval of State
Plans on issues for which OSHA has adopted standards). There are 22
States and territories that have OSHA-approved State Plans for private
employers, and 6 additional States and territories that have OSHA-
approved State Plans for public employers only.
    Under section 18(c)(2) of the OSH Act, State Plans are required to
adopt and enforce occupational safety and health standards that are at
least as effective as federal OSHA's requirements. Id. section
667(c)(2). In addition, the OSH Act requires that State Plans must
cover State and local government employees (including, e.g., State and
local school systems within the scope of this rule), even though
federal OSHA does not have coverage over such employees in States
without OSHA-approved State Plans.
    Once OSHA promulgates an ETS, OSHA's regulations provide that those
States have ``30 days after the date of promulgation of the Federal
standard to adopt a State emergency temporary standard,'' or to
demonstrate ``that promulgation of an emergency temporary standard is
not necessary because the State standard is already the same or at
least as effective as the Federal standard change.'' 29 CFR
1953.5(b)(1). The new ETS becomes part of the OSHA-approved State Plan
through the State Plan's submission to OSHA documentation showing it
adopted an identical ETS or a ``Plan Change Supplement'' showing that
it has adopted requirements that are ``at least as effective'' as
federal OSHA's ETS. 29 CFR 1953.5(b)(3); 1953.4.
    Even in States with OSHA-approved State Plans, any State law
relating to an occupational safety and health issue that OSHA regulates
is preempted unless it is submitted for OSHA's approval as a supplement
to the State Plan. Indust. Truck Ass'n, 125 F.3d at 1311 (``If a State
wishes to regulate an issue of worker safety for which a federal
standard is in effect, its only option is to obtain the prior approval
of the Secretary of Labor . . . [and] [i]t would make the state plan
approval requirement superfluous if a state could pick and choose which
occupational health and safety regulations to submit to OSHA''). Thus,
a State or local requirement banning or limiting employer vaccine
mandates would similarly be preempted because it has not been approved
by federal OSHA as part of the State Plan. And, indeed, it could not be
approved by federal OSHA, because such bans or limitations undercut the
ETS's requirements and are clearly not as effective as the federal ETS.
See 29 U.S.C. 667(c)(2).\86\
---------------------------------------------------------------------------

    \86\ For example, Arizona has an OSHA-approved State Plan, but
its vaccination ban, which is not part of its State Plan, is
preempted by this ETS (see AZ Executive Order 2021-18, Aug. 16,
2021).
---------------------------------------------------------------------------

    Finally, this provision includes a note that this section
establishes minimum requirements for employers, that nothing in this
section prevents employers from agreeing with their employees to
implement additional measures, and that this section does not supplant
collective bargaining agreements or other collectively negotiated
agreements in effect that may have negotiated terms that exceed the
requirements herein. It also references the National Labor Relations
Act of 1935, which protects most private-sector employees' right to
take collective action. The purpose of this note is to remind employers
and employees that OSHA's ETS establishes a floor for protections, and
that it does not preclude bargaining for additional protective
measures. For example, employers might agree to cover the costs of face
coverings or medical removal, or to a requirement that all employees,
regardless of vaccination status, wear face coverings while working
indoors.

References

An Act Prohibiting Discrimination Based on a Person's Vaccination
Status or Possession of an Immunity Passport; Montana H.B. 702.
(2021, July 1). https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf.
(Montana H.B. 702, July 1, 2021)
Arizona Executive Order 2021-18. (2021, August 16). https://azgovernor.gov/sites/default/files/eo_2021-18.pdf. (AZ Executive
Order 2021-18, August 16, 2021)
Arkansas H.B. 1977. (2021, October 1). To Provide Employee
Exemptions From Federal Mandates and Employer Mandates Related to
Coronavirus 2019 (COVID-19); and to Declare an Emergency. https://www.arkleg.state.ar.us/Bills/FTPDocument?path=%2FAMEND%2F2021R%2FPublic%2FHB1977-H1.pdf.
(Arkansas H.B. 1977, October 1, 2021)
Arkansas S.B. 739. (2021, October 4). An Act Concerning Employment
Issues Related to Coronavirus 2019 (COVID-19); To Provide Employee
Exemptions From Federal Mandates and Employer Mandates Related to
Coronavirus 2019 (COVID-19); To Declare and Emergency; and For Other
Purposes. https://www.arkleg.state.ar.us/Bills/FTPDocument?path=%2FBills%2F2021R%2FPublic%2FSB739.pdf. (Arkansas
S.B. 739, October 4, 2021)
Arkansas Governor Asa Hutchinson. (2021, October 13). Press Release:
Governor Hutchinson Allows Vaccine Mandate, Redistricting Bills to
Become Law Without His Signature. https://governor.arkansas.gov/news-media/press-releases/governor-hutchinson-allows-vaccine-mandate-redistricting-bills-to-become-la. (Governor Hutchinson,
October 13, 2021)
Baltimore City Health Department. (2021, August 10). Health
Commissioner Updated Directive and Order for Face Coverings. https://www.baltimorecity.gov/sites/default/files/HEALTH%20COMMISSIONER%20AUGUST%2010,%202021%20DIRECTIVE%20AND%20ORDER%20FOR%20FACE%20COVERINGS_FINAL.pdf. (Baltimore City Health
Department, August 10, 2021)
Emergency Executive Order 225. (2021, August 16). Key to NYC:
Requiring COVID-19 Vaccination for Indoor Entertainment, Recreation,
Dining and Fitness Settings. https://www1.nyc.gov/office-of-the-mayor/news/225-001/emergency-executive-order-225. (NYC Emergency
Executive Order 225, August 16, 2021)
Florida Executive Order 21-102. (2021, May 3). https://
www.flgov.com/wp-content/

uploads/orders/2021/EO_21-102.pdf. (Florida Executive Order 21-102,
May 3, 2021)
Hawai'i Emergency Proclamation Related to the State's COVID-19 Delta
Response. (2021, October 1). https://governor.hawaii.gov/wp-content/uploads/2021/10/2109152-ATG_Emergency-Proclamation-Related-to-the-States-COVID-19-Delta-Response-distribution-signed.pdf. (Hawai'i
Emergency Proclamation, October 1, 2021)
Illinois Executive Order 2021-20. (2021, August 26). https://www.illinois.gov/government/executive-orders/executive-order.executive-order-number-20.2021.html. (Illinois Executive Order
2021-20, August 26, 2021)
Marr C. (2021, October 7). Workplace Vaccine Exemption Bills Sent to
Arkansas Governor. Bloomberg Law. https://news.bloomberglaw.com/daily-labor-report/workplace-vaccine-exemption-bills-sent-to-arkansas-governor. (Marr, October 7, 2021)
Texas Executive Order GA-34. (2021, March 2). Executive Order No.
GA-34 relating to the opening of Texas in response to the COVID-19
disaster. https://open.texas.gov/uploads/files/organization/opentexas/E.O.-GA-34-opening-Texas-response-to-COVID-disaster-IMAGE-03-02-2021.pdf. (Texas Executive Order GA-34, March 2, 2021)
Texas Executive Order GA-36. (2021, May 18). Executive Order No. GA-
36 relating to the prohibition of governmental entities and
officials from mandating face coverings or restricting activities in
response to the COVID-19 disaster. https://gov.texas.gov/uploads/files/press/E.O.-GA-36_prohibition_on_mandating_face_coverings_response_to_COVID-19_disaster_IMAGE_05-18-2021.pdf. (Texas Executive Order GA-36, May
18, 2021)
Texas Executive Order GA-40. (2021, October 11). Executive Order No.
GA-40 relating to prohibiting vaccine mandates, subject to
legislative action. https://gov.texas.gov/uploads/files/press/E.O.-GA-40_prohibiting_vaccine_mandates_legislative_action_IMAGE_10-11-2021.pdf. (Texas Executive Order GA-40, October 11, 2021)

B. Scope and Application

    Paragraph (b)(1) of this ETS provides that the ETS applies to all
employers that have a total of at least 100 employees at any time the
ETS is in effect. OSHA has determined that the unvaccinated employees
of these employers face a grave danger of exposure to SARS-CoV-2,
including the Delta variant, while they are at work (see Grave Danger,
Section III.A. of this preamble). Because this grave danger finding
applies to all unvaccinated employees who come into contact with other
people in indoor work settings as part of their employment, this ETS is
not limited by industrial sector or NAICS code. Therefore, this
standard generally covers employers in all workplaces that are under
OSHA's authority and jurisdiction, including industries as diverse as
manufacturing, retail, delivery services, warehouses, meatpacking,
agriculture, construction, logging, maritime, and healthcare.
I. Decision To Limit Coverage of This ETS to Employers With 100 or More
Employees
    This ETS applies to employers with a total of 100 or more employees
at any time the standard is in effect. In light of the unique
occupational safety and health dangers presented by COVID-19, and
against the backdrop of the uncertain economic environment of a
pandemic, OSHA established this coverage threshold for four reasons.
First, OSHA is confident that employers with 100 or more employees will
be able to meet the standard's requirements promptly, as the emergency
addressed by the standard necessitates. OSHA is less confident that
smaller employers can do so without undue disruption. Second, this
coverage threshold will enable the standard to reach two-thirds of all
private-sector workers in the nation, providing them with prompt
protection. Third, the standard will reach the largest facilities,
where the most deadly outbreaks of COVID-19 can occur. Fourth, the 100-
employee threshold in this standard is comparable with the size
thresholds established by congressional and agency decisions in
analogous contexts.
a. Challenges to Feasibility Analysis for Small Businesses
    An OSHA standard, including an ETS, must be both economically and
technologically feasible. A standard is economically feasible under the
OSH Act if it neither threatens ``massive dislocation to'' nor upsets
the ``competitive stability of'' the regulated industries. United
Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1265 (D.C.
Cir. 1980). Technological feasibility has been interpreted broadly to
mean ``capable of being done'' Am. Textile Mfrs. Inst. v. Donovan, 452
U.S. 490, 509-510 (1981).
    As shown in Economic Analysis, Section IV.B. of this preamble, OSHA
is confident that this standard is feasible for employers with 100 or
more employees. OSHA is not at this time making any determination about
whether it would be appropriate to extend the ETS to cover smaller
employers. Put simply, the agency is requiring that employers it is
confident can implement the provisions of the standard without delay do
so. At the same time, the agency is soliciting public comment and
seeking additional information to assess the ability of smaller
employers to do so in the rulemaking commenced by this ETS. OSHA will
determine the issue on the basis of the record, after receiving public
comment.\87\ The SARS-CoV-2 virus continues to spread rapidly, and each
day that passes, tens of thousands more people are infected. The
employees of larger firms should not have to wait for the protections
of this standard while OSHA takes the additional time necessary to
assess the feasibility of the standard for smaller employers.
---------------------------------------------------------------------------

    \87\ If OSHA receives information suggesting that a broader
scope would be appropriate, the agency could expand the scope of the
ETS quickly through a supplemental action. Fla. Peach Growers Ass'n,
Inc. v. U. S. Dep't of Labor, 489 F.2d 120, 127 (5th Cir. 1974)
(``It is inconceivable that Congress, having granted the Secretary
the authority to react quickly in fast-breaking emergency
situations, intended to limit his ability to react to developments
subsequent to his initial response.'')
---------------------------------------------------------------------------

    The pandemic has presented special challenges for small businesses.
According to a survey conducted during its early stages, 66% of
businesses with fewer than 100 employees had suffered revenues losses
exceeding 30%. (SHRM, May 6, 2020a). By contrast, only 27% of larger
businesses with more than 100 employees had seen revenue drops of more
than 30% (SHRM, May 6, 2020b). More recently, 61% of the members of the
National Federation of Independent Businesses, mostly very small
businesses, responded to a survey reported that they were experiencing
staff shortages, with half of that group reporting a moderate to
significant loss of sales because of unfilled positions (NFIB, July 12,
2021).
    The requirements of the ETS could have a differential impact on
small businesses compared with larger firms. Many small businesses lack
separate human resources departments and struggle to carry out HR
functions. A study found that some 70% of small businesses (with 5 to
49 employees) handle HR tasks in an ad hoc way. (ADP, December 2016).
Only 23% of ad hoc managers believed they had the tools and resources
necessary to perform HR tasks well, and only 19% were fully confident
in their ability to handle HR tasks without making mistakes (ADP,
December 2016). Another survey found that HR functions are
proportionally far more expensive for smaller firms than for larger
(small firms defined as up to 250 workers) (SHRM, 2015). The ETS
requires employers to establish new systems to track vaccination status
among workers, to keep related records, and for firms that allow the
testing option, to keep records of each test.

These records must be treated as confidential medical records subject
to detailed regulations, which is not something most smaller employers
typically need to do or have existing systems in place to address. 29
CFR 1910.1020. While OSHA has imposed similar requirements on smaller
employers before, it has typically done so in highly regulated
industries, such as healthcare, or in industries involving complicated
industrial processes, which already require a certain degree of
administrative capacity even when not responding to a grave danger,
through a rulemaking process that provides additional time for notice
and implementation, and when there is more time to assess the impact
that the standard would have on small business. This emergency standard
by contrast applies across the board to all industries, including less
regulated retail and service sectors.
    Moreover, OSHA estimates that some 5% of employees may have a
medical contraindication or request an accommodation from the rule's
requirements for disability or sincerely held religious belief reasons.
(Please see Economic Analysis, Section IV.B. of this preamble).
Assessing these requests may require more resources for smaller firms
with less experience in this area, particularly if they lack HR staff.
By the same token, a delay in applying the ETS to businesses with fewer
than 100 employees would allow those businesses the benefit of learning
from the models established by larger businesses with respect to
accommodations. Similarly, implementing the ETS's testing provisions in
a stepwise fashion will allow OSHA the time necessary to assess any
impact the new requirements may have on the testing infrastructure and
related supply chains before considering extending those requirements
to additional employers.
b. The ETS Provides Prompt Protection for Most of America's Workforce
    The 100 employee threshold means the ETS will reach two-thirds of
the nation's private sector workforce, providing protection to millions
of workers while issues regarding smaller firms are reviewed. OSHA
considered that a 100 employee threshold was superior to a 150 employee
threshold in this respect, because it would protect more employees: 67%
rather than 63%, which is a difference of 4.856 million workers. (U.S.
Census Bureau, May 2021). And while a 50 employee threshold would have
covered more employees (78%), it would have required additional
feasibility analysis, while still leaving many employees outside the
standard. (U.S. Census Bureau, May 2021).
c. The ETS Will Help Prevent Large Outbreaks of COVID-19
    The ETS's focus on employers with more than 100 employees will also
help prevent large-scale outbreaks. As addressed in more detail in the
discussion of Grave Danger (Section III.A. of this preamble), all
unvaccinated employees who work in indoor settings face a grave danger
from COVID-19, which is why the scope of the ETS is not limited to
worksites of a specific size. The standard is based on employer size
primarily because administrative capacity is more closely related to
employer size. In addition, employer size provides a clear measure that
is easy for employers (and OSHA) to track, as opposed to an alternative
such as a workplace-based approach, which could fluctuate from day to
day and mean more places and information for the employer to track. But
OSHA also chose the 100 employee size threshold in recognition of the
fact that larger employers are more likely to have many employees
gathered in the same location. For employers with 100 or more
employees, the median number of employees at any one location is
approximately 50 (the average is also 50). (U.S. Census Bureau, May
2021). For employers with fewer than 100 employees, the median number
of any one location is approximately 2 (with an average number of 7)
(U.S. Census Bureau, May 2021).
    Employees at larger locations are statistically more likely to be
exposed to someone with COVID-19 during the course of their shifts, and
thus face a heightened risk of virus transmission. Studies indicate
that introduction of infection and the risk of infection transmission
is increased with the size of a gathering (Champredon et al., April,
2021), and with larger populations (Shacham et al., July 5, 2021). See
also (Contreras et al., July, 2021) (concluding that outbreaks were
larger and lasted longer at facilities with more onsite staff). It is
therefore not surprising that significant COVID-19 outbreaks have
occurred at large facilities of employers with 100 or more employees
\88\ (Oregon Health Authority, October 6, 2021; CDPHE, October 6,
2021). A study of outbreaks in Los Angeles County found that the median
number of employees in an establishment in which an outbreak occurred
was 95, well above the 50 employee median for locations of employers
covered by this rule, indicating that the rule will protect employees
in the places where outbreaks are most likely to occur. (Contreras et
al., July, 2021). And those outbreaks occurred even before the
emergence of the SARS-CoV-2 Delta variant, which the CDC says ``causes
more infections and spreads faster than early forms of SARS-CoV-2.''
(CDC, August 26, 2021) In fact, the studies noted earlier in this
paragraph were published just as the Delta variant was emerging,
meaning that the risk of transmission cited in those studies has likely
increased.
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    \88\ See, e.g., Oregon Health Authority, October 6, 2021,
(publishing data on outbreaks in large workplaces including two
Amazon facilities, several hospitals, and a Walmart distribution
center); CDPHE, Oct. 6, 2021, (identifying an active Covid outbreak
in Cargill's Fort Morgan, CO meat processing plant, which employs
more than 2,000 workers). While some have speculated that clusters
of infections among employees at the same facility might result
initially from shared exposures outside of work, the original source
of the infection would have little bearing on the statistical
probability of exposure and transmission once the infected people
are together in the workplace with unvaccinated co-workers. The most
effective way to prevent further transmission is to protect the
other workers through vaccination or, when that is not possible,
identify and remove the infected workers from the workplace as
quickly as possible.
---------------------------------------------------------------------------

    While virus transmission is certainly not limited to large
facilities, the potential scope of an outbreak is inherently more
limited when fewer employees are present. In limiting the scope of the
ETS to employers with 100 or more employees, OSHA is prioritizing
coverage of those businesses in which the spread of the virus could
potentially affect the largest number of employees and for which the
agency is most confident that it is feasible to apply the standard.
d. Analogous Regulatory Regimes Use Comparable Employee Size Thresholds
    Congress and federal agencies have frequently recognized that an
employee size threshold may be appropriate in different regulatory
contexts. They have not settled on any one number as the most
appropriate, presumably because that depends on balancing different
considerations that are relevant to the particular context, as OSHA has
done here. But several analogous regulatory regimes use employee size
thresholds comparable to the one selected here, in light of similar
concerns about administrative feasibility.
    For example, the EEOC has issued regulations requiring employers
with 100 or more employees to submit annual reports related to equal
employment opportunity in their workforce, in recognition that larger
employers are better equipped to absorb the types of administrative
burdens

imposed by surveying, tracking and recordkeeping requirements. See 42
U.S.C. 2000e-8(c), 29 CFR 1602.7-.14 and 41 CFR 60-1.7(a). In earlier
measures adopted in response to the COVID-19 pandemic, Congress adopted
special protections and exemptions based on employee counts. The
Families First Coronavirus Response Act, Public Law 116-127 (2020),
sections 7001 and 7003 provided tax credits to businesses with fewer
than 500 employees to assist compliance with the Act's expansion of
paid sick and family leave, in recognition of the challenges facing
smaller employers. Congress again relied on the same 500 employee
threshold when it later extended tax credits only to employers who
granted employees paid time off to be vaccinated, implicitly
acknowledging the financial obstacles that can exist for smaller
employers for the same activity that this ETS promotes (and without the
vaccine policy and verification requirement in this ETS). American
Rescue Plan Act, Public Law 117-2, Sec. 9641 (2021).
    In the Affordable Care Act, Congress set the maximum size of a
``small employer'' at 100 employees for purposes of allowing greater
flexibility to these employers. 42 U.S.C.A. 18024(b)(3). Likewise,
private employers with fewer than 50 employees are exempt from
complying with the Family and Medical Leave Act, in recognition of
smaller employers' decreased administrative capacity, as well as their
inability to easily accommodate employee absences. 29 U.S.C.A.
2611(2)(b)(2).
e. The 100 Employee Coverage Provision Is a Reasonable Exercise of the
Secretary's Authority
    OSHA's choice of a 100 employee threshold is based on balancing the
fundamentally incommensurable considerations described above. Under the
statute OSHA ``shall'' issue an ETS when employees are exposed to grave
danger, and is not to follow normal notice and comment procedures to
build a record. 29 U.S.C. 655(e). But OSHA may not issue an ETS unless
it shows that the rule is feasible for the employers covered, and it
has not yet made a feasibility determination for smaller employers. In
the circumstances of this case, OSHA considered that an ETS was
urgently needed to protect employees, that a 100 employee threshold
would protect the great majority of them and prevent the largest
outbreaks, that it would avoid the delays that would be needed if the
agency were required to gather information and analyze feasibility for
smaller employers, and that a comparable size threshold has been found
appropriate in similar contexts. Where employees are dying every day,
it is not unreasonable for the agency to prioritize doing what it can
to address the problem quickly, regardless of whether there are further
actions it might be able to take later.
    Doing so implements the statutory delegation of authority to the
agency to establish priorities for issuing standards by giving ``due
regard to the urgency of the need'' for standards for particular
workplaces. 29 U.S.C. 655(g). The courts have recognized that this
provision authorizes the Secretary to make reasonable decisions
limiting the scope of a standard, particularly where as here the agency
has said it will address the reserved issue in subsequent rulemaking.
Forging Indus. Assoc. v. Donovan, 773 F.2d 1436, 1454 (4th Cir. 1985)
(hearing conservation standard); United Steelworkers of Am. v.
Marshall, 647 F.2d 1189, 1309-1310 (D.C. Cir. 1980) (lead standard).
    Where competing considerations are in play and there is no clear
perfect choice, OSHA has a degree of discretion to draw a reasonable
line. Courts have consistently recognized that agencies have discretion
to draw reasonable lines. As the D.C. Circuit has explained: An agency
has ``wide discretion'' in making line-drawing decisions and ``[t]he
relevant question is whether the agency's numbers are within a zone of
reasonableness, not whether its numbers are precisely right.''
WorldCom, Inc. v. FCC, 238 F.3d 449, 462 (D.C. Cir. 2001) (quotation
marks omitted). An agency ``is not required to identify the optimal
threshold with pinpoint precision. It is only required to identify the
standard and explain its relationship to the underlying regulatory
concerns.'' Id. at 461-62. Nat'l Shooting Sports Found. v. Jones, 716
F.3d. 200, 214-215 (D.C. Cir 2013). See also Providence Yakima Med.
Ctr. v. Sebelius, 611 F.3d 1181, 1190-1191 (9th Cir. 2010).
    For the reasons discussed above, the balance the agency struck here
falls well within this zone of reasonableness.
II. Explanation of Who Is Included in the 100-Employee Threshold
    The applicability of this ETS is based on the size of an employer,
in terms of number of employees, rather than on the type or number of
workplaces. In determining the number of employees, employers must
include all employees across all of their U.S. locations, regardless of
employees' vaccination status or where they perform their work. Part-
time employees do count towards the company total, but independent
contractors do not. As discussed above, OSHA has not found that the
standard is feasible for firms with fewer than 100 employees, because
it needs additional time to assess the impact of the standard on these
employers, particularly as many smaller firms lack separate human
resources departments and may face additional challenges when carrying
out human resources functions. In contrast, OSHA has determined that
the standard is feasible for firms with 100 or more employees,
regardless of where those employees report to work. These firms
generally have greater administrative capacities, and including all
such employers in the scope of this ETS ensures that OSHA can cover
two-thirds of all workers in the private sector as quickly as possible.
    For a single corporate entity with multiple locations, all
employees at all locations are counted for purposes of the 100-employee
threshold for coverage under this ETS. In a traditional franchisor-
franchisee relationship in which each franchise location is
independently owned and operated, the franchisor and franchisees would
be separate entities for coverage purposes, such that the franchisor
would only count ``corporate'' employees, and each franchisee would
only count employees of that individual franchise. In other situations,
two or more related entities may be regarded as a single employer for
OSH Act purposes if they handle safety matters as one company, in which
case the employees of all entities making up the integrated single
employer must be counted.
    In scenarios in which employees of a staffing agency are placed at
a host employer location, only the staffing agency would count these
jointly employed workers for purposes of the 100-employee threshold for
coverage under this ETS. Although the staffing agency and the host
employer would normally share responsibility for these workers under
the OSH Act, this ETS raises unique concerns in that OSHA has set the
threshold for coverage based primarily on administrative capacity for
purposes of protecting workers as quickly as possible, as discussed
above, and the staffing agency would typically handle administrative
matters for these workers. Thus, for purposes of the 100-employee
threshold, only the staffing agency would count the jointly employed
employees. The host employer, however, would still be covered by this
ETS if it has 100 or more employees in addition to the employees of the
staffing agency. For enforcement purposes, traditional joint employer
principles would apply where both employers are covered by the ETS, as

illustrated further by the examples below. See also https://www.osha.gov/temporaryworkers/.
    On a typical multi-employer worksite such as a construction site,
each company represented--the host employer, the general contractor,
and each subcontractor--would only need to count its own employees, and
the host employer and general contractor would not need to count the
total number of workers at each site. That said, each employer must
count the total number of workers it employs regardless of where they
report for work on a particular day. Thus, for example, if a general
contractor has more than 100 employees spread out over multiple
construction sites, that employer is covered under this ETS even if it
does not have 100 or more employees present at any one worksite.
Covering the employees of larger employers at multi-employer worksites
would mitigate the spread of COVID-19 at the workplace even where not
all employees are covered by this ETS because fully vaccinated
employees (or unvaccinated employees wearing face coverings and
submitting to weekly testing) would be less likely to spread the virus
to unvaccinated workers at the site who are not covered by this ETS.
    The determination as to whether a particular employer is covered by
the standard should be made separately from whether individual
employees are covered by the standard's requirements, as described by
paragraph (b)(3) (e.g., some employers may be covered but have no
duties with respect to some of their employees under this standard).
Some additional examples include:
     If an employer has 75 part-time employees and 25 full-time
employees, the employer would be within the scope of this ETS because
it has 100 employees.
     If an employer has 150 employees, 100 of whom work from
their homes full-time and 50 of whom work in the office at least part
of the time, the employer would be within the scope of this ETS because
it has more than 100 employees.
     If an employer has 102 employees and only 3 ever report to
an office location, that employer would be covered.
     If an employer has 150 employees, and 100 of them perform
maintenance work in customers' homes, primarily working from their
company vehicles (i.e., mobile workplaces), and rarely or never report
to the main office, that employer would also fall within the scope.
     If an employer has 200 employees, all of whom are
vaccinated, that employer would be covered.
     If an employer has 125 employees, and 115 of them work
exclusively outdoors, that employer would be covered.
     If a single corporation has 50 small locations (e.g.,
kiosks, concession stands) with at least 100 total employees in its
combined locations, that employer would be covered even if some of the
locations have no more than one or two employees assigned to work
there.
     If a host employer has 80 permanent employees and 30
temporary employees supplied by a staffing agency, the host employer
would not count the staffing agency employees for coverage purposes and
therefore would not be covered. (So long as the staffing agency has at
least 100 employees, however, the staffing agency would be responsible
for ensuring compliance with the ETS for the jointly employed workers.)
     If a host employer has 110 permanent employees and 10
temporary employees from a small staffing agency (with fewer than 100
employees of its own), the host employer is covered under this ETS and
the staffing agency is not.
     If a host employer has 110 permanent employees and 10
employees from a large staffing agency (with more than 100 employees of
its own), both the host employer and the staffing agency are covered
under this standard, and traditional joint employer principles apply.
     Generally, in a traditional franchisor-franchisee
relationship, if the franchisor has more than 100 employees but each
individual franchisee has fewer than 100 employees, the franchisor
would be covered by this ETS but the individual franchises would not be
covered.
    As explained earlier, part of OSHA's rationale in adopting the 100-
employee threshold is to focus the ETS on companies that OSHA is
confident will have sufficient administrative systems in place to
comply quickly with the ETS. Thus, the ETS applies to all employers who
have the requisite number of employees at any time this ETS is in
effect. Along with employers that always have more than 100 employees,
OSHA intends to cover employers that fluctuate above and below the 100-
employee threshold during the term of the ETS because those employers
will typically have already developed systems and capabilities for
compliance; a decrease in the number of employees is therefore unlikely
to make them less capable of compliance.
    The determination of whether an employer falls within the scope of
this ETS based on number of employees should initially be made as of
the effective date of the standard, as set out in paragraph (m)(1). If
the employer has 100 or more employees on the effective date, this ETS
applies for the duration of the standard. If the employer has fewer
than 100 employees on the effective date of the standard, the standard
would not apply to that employer as of the effective date. However, if
that same employer subsequently hires more workers and hits the 100-
employee threshold for coverage, the employer would then be expected to
come into compliance with the standard's requirements. Once an employer
has come within the scope of the ETS, the standard continues to apply
for the remainder of the time the standard is in effect, regardless of
fluctuations in the size of the employer's workforce. For example, an
employer that has 103 employees on the effective date of the standard,
but then loses four within the next month, would continue to be covered
by the ETS. OSHA is confident that employers with 100 or more employees
at any point while this ETS is in effect have the administrative
capacity to comply with the ETS, even if the number of employees
fluctuates somewhat above and below 100.
    Paragraph (b)(2) of this ETS sets forth two exemptions to the
standard.\89\ Under paragraph (b)(2)(i), this ETS does not apply to
workplaces covered by the Safer Federal Workforce Task Force COVID-19
Workplace Safety: Guidance for Federal Contractors and Subcontractors
(see Safer Federal Workforce Task Force, September 24, 2021). With
limited exceptions, such as where a medical contraindication,
disability, or sincerely held religious belief would prevent an
employee from complying with certain provisions, those guidelines
require covered

contractors to ensure that all covered contractor employees (1) are
fully vaccinated by December 8, 2021; (2) follow CDC guidelines for
masks and physical distancing, including masking and distancing
requirements based on the employee's vaccination status and the level
of community transmission of COVID-19 where the workplace is located;
and (3) designate a person to coordinate COVID-19 workplace safety
efforts at covered workplaces. Because covered contractor employees are
already covered by the protections in those guidelines, OSHA has
determined that complying with this standard in addition to the federal
contractor guidelines is not necessary to protect covered contractor
employees from a grave danger posed by COVID-19. Although there may be
some respects in which the OSHA standard is somewhat more protective,
such as providing paid leave for vaccination, the federal contractor
guidelines are somewhat more protective in other respects, such as
requiring vaccination for everyone who does not have a right to an
accommodation rather than allowing employees to submit to testing in
lieu of vaccination. In essence, they are similar but slightly
different schemes that provide roughly equivalent protection, and OSHA
has determined that imposing a second set of similar protections on
covered federal contractors by subjecting them to this ETS in addition
to the federal contractor guidance is not necessary at this time to
reduce a grave danger to covered contractor employees from COVID-19.
---------------------------------------------------------------------------

    \89\ Note that, in addition to the scope exceptions contained in
the ETS itself, which are discussed in this section, there may be
situations where the ETS does not apply by operation of the OSH Act.
For example, the OSH Act does not apply to working conditions of
employees with respect to which other Federal agencies have
exercised their statutory authority to prescribe or enforce
standards or regulations affecting occupational safety or health
(see 29 U.S.C. 653(b)(1)). Moreover, the ETS does not apply where
states with OSHA-approved occupational safety and health programs
(``State Plans'') have coverage (see 29 U.S.C. 667). State Plans
must adopt and enforce COVID-19 requirements that are at least as
effective as this ETS. Finally, the ETS does not apply to state and
local government employers in states without State Plans (see 29
U.S.C. 652(5)).
---------------------------------------------------------------------------

    Under Executive Order 14043, every federal agency must implement a
program requiring each of its federal employees to be vaccinated
against COVID-19, except as required by law. 86 FR 50989. OSHA will
regard a federal agency's compliance with this requirement, and the
related Safer Federal Workforce Task Force guidance issued under
section 4(e) of Executive Order 13991 and section 2 of Executive Order
14043 (including guidance on employer support in the form of paid time
for vaccination and paid leave for post-vaccination recovery), as
sufficient to meet its obligation to comply with this ETS under Section
19 of the OSH Act and Executive Order 12196. In essence, the federal
government has chosen the mandatory vaccination option of this rule,
and all federal employees are required to be fully vaccinated by the
compliance date of this standard, except where entitled to a reasonable
accommodation. The Safer Federal Workforce Task Force's guidelines for
vaccination verification are consistent with the ETS's (see Safer
Federal Workforce Task Force, October 11, 2021). Note, however, that
under the OSH Act, the U.S. Postal Service is treated as a private
employer, see 29 U.S.C. 652(5), and it is therefore required to comply
with this ETS in the same manner as any other employer covered by the
Act.
    For similar reasons, paragraph (b)(2)(ii) provides that this ETS
does not apply in settings where any employee provides healthcare
services or healthcare support services while they are covered by the
requirements of 29 CFR 1910.502. Section 1910.502 requires a multi-
layered suite of protections for employees covered by its requirements,
including patient screening and management, facemasks or respirators,
other personal protective equipment (PPE), limiting exposure to
aerosol-generating procedures, physical distancing, physical barriers,
cleaning, disinfection, ventilation, health screening and medical
management, access to vaccination, and medical removal protection.
Section 1910.502 was carefully tailored to the healthcare workplaces it
covers and, given the full suite of protections it requires, including
(like this ETS) the provision of paid time for vaccination, OSHA has
determined that it adequately protects the employees covered by its
requirements from the grave danger posed by COVID-19. Therefore,
complying with the additional requirements of this ETS is not necessary
to protect those employees while they are covered by that standard's
protections.
    OSHA's intent was to leave no coverage gaps between section
1910.502 and this ETS. In other words, the purpose of paragraph
(b)(2)(ii) is to ensure that all workers in healthcare and healthcare
support jobs who are at grave danger from exposure to SARS-CoV-2 are
protected by either section 1910.502 or this ETS while performing their
jobs. Therefore, it will be necessary for employers with employees
covered by section 1910.502 to determine if they also have employees
covered by this ETS. For example, a healthcare employer with more than
100 employees that has non-hospital ambulatory care facilities that are
exempt under section 1910.502(a)(2)(iii) (for non-hospital ambulatory
care settings where all non-employees are screened prior to entry and
those with suspected or confirmed COVID-19 are prohibited from entry)
would be required to protect the employees in those ambulatory care
facilities under this ETS. Similarly, a retail pharmacy chain that
operates a series of ambulatory care clinics embedded in its stores,
where those embedded clinics are the only areas in the store that are
covered under 1910.502 (see section 1910.502(a)(3)(i)), would have to
ensure that the remainder of its employees in other parts of its stores
are protected under this ETS if the company has 100 or more employees
company-wide, including those covered under 1910.502.
    Paragraph (b)(3) provides that, even where the standard applies to
a particular employer, its requirements do not apply to employees: (i)
Who do not report to a workplace where other individuals such as
coworkers or customers are present; (ii) while working from home; or
(iii) who work exclusively outdoors. OSHA intends these provisions to
exempt workplace settings where workers do not interact indoors with
other individuals, and to exempt work performed in the employee's home
regardless of whether other individuals may be present in the home.
    OSHA has determined that the provisions of this ETS are not
necessary to protect employees from COVID-19 when they are working
alone, or when they are working from home (see Grave Danger, Section
III.A. of this preamble). These two provisions may overlap in some
cases, but also can apply to slightly different situations. Paragraph
(b)(3)(i) would apply to work in a solitary location, such as a
research station where only one person (the employee) is present at a
time. In that situation, the employee is not exposed to any potentially
infectious individuals at work. Paragraph (b)(3)(ii) would apply to
employees working in their homes, regardless of whether other
individuals who are not employees of the same employer are present. In
a home telework environment, many factors--such as the presence of
family members and other individuals unrelated to the employee's work,
who may not be fully vaccinated or wearing face coverings--may be
beyond the employer's control. Employees are typically in the best
position to manage COVID-19 risks in their homes. Note that the
exemption in paragraph (b)(3)(ii) only applies to employees while they
are working from home. An employee who switches back and forth from
teleworking to working in a setting where other people are present
(e.g., an office) is covered by this ETS and must be vaccinated if
required by the employer. If the employer does not require vaccination,
the teleworking employee must either be vaccinated or complete testing
and wear a face covering in accordance with their

employer's policy under paragraph (d). How often such an employee must
be tested for COVID-19 and wear a face covering, however, depends on
how often they report to the office (see, e.g., paragraph (g)(1)(ii)).
    Paragraph (b)(3)(iii) provides that, even if a particular employer
is covered by the standard, the requirements of the standard do not
apply to employees who work exclusively outdoors. OSHA has determined
that COVID-19 does not pose a grave danger to employees who work
exclusively outdoors because of the significantly reduced likelihood of
transmission in outdoor settings. As discussed in more detail in Grave
Danger (Section III.A. of this preamble), the record contains very
little evidence of COVID-19 transmission in outdoor settings. And, in
studies where clusters were identified in worksites characterized as
being outdoors, the study authors were not able to identify specific
incidents that led to transmission. In addition, workplaces
characterized as ``outdoors'' may in fact involve significant time
spent indoors. For example, on a construction site, workers inside a
partially complete structure are not truly outdoors, and some
individuals on a construction site may spend significant amounts of
time in a construction trailer where other individuals are present.
Workers at outdoor locations may also routinely share work vehicles.
These indoor exposures could account for COVID-19 clusters among
employees at worksites otherwise characterized as being outdoors. And
employees whose outdoor time is interrupted by the indoor periods will
still be subject to the requirements in this ETS.
    Studies of athletic teams further indicate that evidence of COVID-
19 clusters among workers characterized as working outdoors could
actually be caused by indoor exposures. Even where athletes were in
very close contact during outdoor exposures on the playing field, the
study authors could not identify a single case of COVID-19 transmission
between teams that occurred outdoors (see Mack et al., January 29,
2021; Egger et al., March 18, 2021; Jones et al., February 11, 2021).
For all of these reasons, and as discussed more fully in Grave Danger
(Section III.A. of this preamble), OSHA has determined that COVID-19
does not pose a grave danger to employees who work exclusively
outdoors.
    As a practical matter, determining the applicability of paragraph
(b)(3)(iii) depends on the working conditions of individual employees.
For example, if a landscaping contractor has at least 100 employees and
is not covered by the exemptions in paragraph (b)(2), the standard
applies to that employer even if a majority of the company's employees
work exclusively outdoors. The standard's protections would only apply
to employees working in indoor settings around other individuals (other
than telework in their own homes), not to those employees working
exclusively outdoors. In some cases, it may be true that the standard
applies to an employer but the employer would not have to implement its
provisions at all because all of its employees fall within exemptions
in paragraph (b)(3). Going back to the example of the large landscaping
contractor, if all indoor workers either work from home or in locations
where no other individuals are present, and all outdoors workers work
exclusively outdoors and do not drive to worksites together in a
company vehicle, the employer would be covered by the ETS but not
required to comply with its provisions.
    An employee will only be covered by the exemption in paragraph
(b)(3)(iii) if the employee works exclusively outdoors. Thus, an
employee who works indoors on some days and outdoors on other days
would not be exempt from the requirements of this ETS. Likewise, if an
employee works primarily outdoors but routinely occupies vehicles with
other employees as part of work duties, that employee is not covered by
the exemption in paragraph (b)(3)(iii). However, if an employee works
outdoors for the duration of every workday except for de minimis use of
indoor spaces where other individuals may be present--such as a multi-
stall bathroom or an administrative office--that employee would be
considered to work exclusively outdoors and covered by the exemption
under paragraph (b)(3)(iii) as long as time spent indoors is brief, or
occurs exclusively in the employee's home (e.g., a lunch break at
home). Extremely brief periods of indoor work would not normally expose
employees to a high risk of contracting COVID-19; however, OSHA will
look at cumulative time spent indoors to determine whether that time is
de minimis. Thus, if there are several brief periods in a day when an
employee goes inside, OSHA will total those periods of time when
determining whether the exception for exclusively outdoors work
applies.
    Finally, to qualify for this exception, the employee's work must
truly occur ``outdoors,'' which would not include buildings under
construction where substantial portions of the structure are in place,
such as walls and ceiling elements that would impede the natural flow
of fresh air at the worksite. Workplaces that are truly outdoors
typically do not include any of the characteristics that normally
enable transmission of SARS-CoV-2 to occur, such as poor ventilation,
enclosed spaces, and crowding. As discussed in Bulfone et al. (November
29, 2020), the lower risk of transmission in outdoor settings (i.e.,
open air or structures with only one wall) is likely due to increased
ventilation with fresh air and a greater ability to maintain physical
distancing (see Grave Danger, Section III.A. of this preamble, for more
information on risk of transmission outdoors).

References

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C. Definitions

    Paragraph (c) of the ETS provides definitions of terms used in the
section.
    ``Assistant Secretary'' means the Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, or designee.
This definition provides clarification about who can request and
receive records specified in paragraph (l)(3) of this section. A
designee includes a representative conducting an inspection or an
investigation.
    ``COVID-19 (Coronavirus Disease 2019)'' means the disease caused by
SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2). SARS-CoV-
2 is a highly transmissible virus that spreads primarily through the
respiratory droplets that are produced when an infected person coughs,
sneezes, sings, talks, or breathes. The nature of the disease, variants
of SARS-CoV-2, disease transmission, and associated health effects are
all described in great detail in Grave Danger (Section III.A. of this
preamble). For clarity and ease of reference, the ETS also uses the
term ``COVID-19'' when describing exposures or potential exposures to
SARS-CoV-2. The requirements of the ETS are intended to address the
grave danger of exposure to COVID-19 in the workplace.
    A ``COVID-19 test'' means a test for SARS-CoV-2 that is: (1)
Cleared, approved, or authorized, including in an Emergency Use
Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to
detect current infection with the SARS-CoV-2 virus (e.g., a viral
test); (2) administered in accordance with the authorized instructions;
and (3) not both self-administered and self-read unless observed by the
employer or an authorized telehealth proctor. Examples of tests that
satisfy this requirement include tests with specimens that are
processed by a laboratory (including home or on-site collected
specimens which are processed either individually or as pooled
specimens), proctored over-the-counter tests, point of care tests, and
tests where specimen collection and processing is either done or
observed by an employer.
    Under paragraph (g), employees who are not fully vaccinated must be
tested for COVID-19. When an employee must be tested, the test is
considered acceptable only if the test and the administration of the
test satisfy the definition of COVID-19 test in this standard.
    COVID-19 tests can broadly be divided into two categories,
diagnostic tests and antibody tests. Diagnostic tests detect parts of
the SARS-CoV-2 virus and can be used to diagnose current infection. On
the other hand, antibody tests look for antibodies in the immune system
produced in response to SARS-CoV-2, and are not used to diagnose an
active COVID-19 infection. Antibody tests do not meet the definition of
COVID-19 test for the purposes of this ETS.
    Diagnostic tests for current infection fall into two categories:
Nucleic acid amplification tests (NAATs) and antigen tests. NAATs are a
type of molecular test that detect genetic material (nucleic acids);
NAATs for COVID-19 identify the ribonucleic acid (RNA) sequences that
comprise the genetic material of the virus. NAATs can reliably detect
small amounts of SARS-CoV-2 and are unlikely to return a false-negative
result. NAATs use many different methods to detect the virus, including
reverse transcription-polymerase chain reaction (RT-PCR), which is a
high-sensitivity, high-specificity \90\ test for diagnosing SARS-CoV-2
infection. Other types of NAATs that use isothermal amplification
methods include nicking endonuclease amplification reaction (NEAR),
transcription mediated amplification (TMA), loop-mediated isothermal
amplification (LAMP), helicase-dependent amplification (HDA), clustered
regularly interspaced short palindromic repeats (CRISPR), and strand
displacement amplification (SDA) (CDC, June 14, 2021).
---------------------------------------------------------------------------

    \90\ Test sensitivity indicates the ability of a test to
correctly identify people who have a disease. Test specificity
indicates the ability of a test to correctly identify people who do
not have a disease. A test with high sensitivity and high
specificity minimizes inaccurate results.
---------------------------------------------------------------------------

    Most NAATs need to be processed in a laboratory with variable time
to receive results (approximately 1-2 days), but some NAATs are point-
of-care tests with results available in about 15-45 minutes. As of
October 14, 2021, 264 molecular tests (NAATs) and collection devices
have EUA from the FDA for COVID-19 (FDA, October 14, 2021b). These
tests may be acceptable under the ETS.
    Antigen tests may also meet the definition of COVID-19 test under
this standard. Antigen tests indicate current infection by detecting
the presence of a specific viral antigen. Most can be processed at the
point of care with results available in about 1530 minutes. Antigen
tests generally have similar specificity to, but are less sensitive
than, NAATs (CDC, October 7, 2021). As of October 14, 2021, thirty-
seven antigen

tests have EUA from the FDA for COVID-19 (FDA, October 14, 2021a).
These tests may be acceptable under the ETS.
    Most antigen tests and some NAATs are conducted at the point of
care, which means the test processing and result reading is performed
at or near the place where a specimen is collected so that results can
be obtained within minutes rather than hours or days. Rapid point-of-
care tests are administered in various settings operating under a
Clinical Laboratory Improvement Amendments of 1988 (CLIA) certificate
of waiver, such as physician offices, urgent care facilities,
pharmacies, school health clinics, workplace health clinics, long-term
care facilities and nursing homes, and at temporary locations, such as
drive-through sites managed by local health organizations (FDA,
November 16, 2020).
    To be a valid COVID-19 test under this standard, a test may not be
both self-administered and self-read unless observed by the employer or
an authorized telehealth proctor. OSHA included the requirement for
some type of independent confirmation of the test result in order to
ensure the integrity of the result given the ``many social and
financial pressures for test-takers to misrepresent their results''
(Schulte et al., May 19, 2021). This independent confirmation can be
accomplished in multiple ways, including through the involvement of a
licensed healthcare provider or a point-of-care test provider. If an
over-the-counter (OTC) test is being used, it must be used in
accordance with the authorized instructions. The employer can validate
the test through the use of a proctored test that is supervised by an
authorized telehealth provider. Alternatively, the employer could
proctor the OTC test itself.
    Employers have the flexibility to select the testing scenario that
is most appropriate for their workplace. Some employees and employers
may rely on testing that is conducted by a healthcare provider (e.g.,
doctor or nurse) who arranges for the specimen to be analyzed at a
laboratory or at a point-of-care testing location (e.g., a pharmacy).
The involvement of licensed or accredited healthcare providers allows
employers to have a high degree of confidence in the suitability of the
test and the test results. Some large employers who set up their own
on-site testing program may partner with a healthcare organization
(e.g., a local hospital or clinic) or rely on a licensed healthcare
provider to help obtain a CLIA certificate of waiver. Other employers
may simply require that employees perform and read their own OTC test
while an authorized employee observes the administration and reading of
the test to ensure that a new test kit was used and that the test was
administered properly (e.g., nostrils were swabbed), and to witness the
test result.
    Due to the potential for employee misconduct (e.g., falsified
results), tests that are both self-administered and self-read are not
acceptable unless they are observed by the employer or an authorized
telehealth proctor. Some COVID-19 tests are authorized by the FDA to be
performed only with the supervision of a telehealth proctor, which is
someone who is trained to observe sample collection and provide
instructions and result interpretation assistance to individuals using
the test. The term ``authorized telehealth proctor'' refers to proctors
who follow the requirements for proctoring specified by the FDA
authorization. For a more detailed discussion on COVID-19 testing
requirements under this ETS, see the Summary and Explanation for
paragraph (g) (Section VI.G. of this preamble).
    A ``face covering'' means a covering that: (1) Completely covers
the nose and mouth; (2) is made with two or more layers of a breathable
fabric that is tightly woven (i.e., fabrics that do not let light pass
through when held up to a light source); (3) is secured to the head
with ties, ear loops, or elastic bands that go behind the head. If
gaiters are worn, they should have two layers of fabric or be folded to
make two layers; (4) fits snugly over the nose, mouth, and chin with no
large gaps on the outside of the face; and (5) is a solid piece of
material without slits, exhalation valves, visible holes, punctures, or
other openings. This definition includes clear face coverings or cloth
face coverings with a clear plastic panel that, despite the non-cloth
material allowing light to pass through, otherwise meet this definition
and which may be used to facilitate communication with people who are
deaf or hard-of-hearing or others who need to see a speaker's mouth or
facial expressions to understand speech or sign language respectively.
Face coverings can be manufactured or homemade, and they can
incorporate a variety of designs, structures, and materials. Face
coverings provide variable levels of protection based on their design
and construction.
    As explained in paragraph (i), face covering use is required based
on an employee's vaccination status. The criteria in the definition
help to ensure that face coverings that are worn by workers who are not
fully vaccinated will provide effective source control and some degree
of personal protection. Source control means reducing the spread of
large respiratory droplets to others by covering a person's mouth and
nose. The personal protection afforded by face coverings, as well as
the benefits and necessity, are described in the Summary and
Explanation for paragraph (i) (Section VI.I. of this preamble).
    Face coverings differ from facemasks and respirators, which are
also defined in paragraph (c) of this section. Face coverings, unlike
facemasks and respirators, are not considered to be personal protective
equipment (PPE) under OSHA's general PPE standard (29 CFR 1910.132), as
discussed in the Summary and Explanation for paragraph (i) (Section
VI.I. of this preamble).
    Lastly, face coverings as required by this standard do not have to
meet a consensus standard, although face coverings that adhere to such
consensus standards, with design and construction specifications, meet
the definition and may offer both greater protection and the confidence
that at least a minimum level of protection has been provided. The
National Institute for Occupational Safety and Health (NIOSH)
recommends that employers and workers who want a face covering that
provides a known level of protection use face coverings that meet a new
standard, called Workplace Performance and Workplace Performance Plus
masks, for workplaces. As discussed in the Summary and Explanation for
paragraph (i) (Section VI.I. of this preamble), the new NIOSH criteria
and the ASTM Specification for Barrier Face Coverings, F3502-21 (ASTM
Standard) provide a greater level of source control performance for
workers when wearing the face covering according to manufacturer's
instructions. The NIOSH criteria require that face coverings conform to
the ASTM Standard and meet additional quantitative leakage criteria.
Although not required by the standard, OSHA notes that face coverings
that meet ASTM F3502-21 requirements and the new NIOSH criteria may
offer a higher level of source control and wearer protection than those
face coverings that do not meet a consensus standard.
    A ``facemask'' means a surgical, medical procedure, dental, or
isolation mask that is FDA-cleared, authorized by an FDA EUA, or
offered or distributed as described in an FDA enforcement policy.
Facemasks may also be referred to as ``medical procedure masks.'' This
definition provides clarification about the exception to the face
covering

requirement under paragraph (i)(1)(iii) that permits facemask use in
lieu of face coverings. OSHA notes that facemasks are not respirators,
which are also defined in this section.
    Facemasks provide protection against exposure to splashes, sprays,
and spatter of body fluids. Facemasks offer both source control, as
defined in this section under face coverings, and protection for the
wearer. OSHA has previously established that facemasks are essential
PPE for employees in healthcare, under both the general PPE standard
(29 CFR part 1910.132) and the Bloodborne Pathogens standard (29 CFR
part 1910.1030). Although not required, the Summary and Explanation for
paragraph (i) (Section VI.I. of this preamble) addresses their
inclusion in this standard. Additional information on such facemasks
can be found in relevant FDA guidance.
    ``Fully vaccinated'' means (i) a person's status 2 weeks after
completing primary vaccination with a COVID-19 vaccine with, if
applicable, at least the minimum recommended interval between doses in
accordance with the approval, authorization, or listing that is: (A)
Approved or authorized for emergency use by the FDA; (B) listed for
emergency use by the World Health Organization (WHO); or (C)
administered as part of a clinical trial at U.S. site, if the recipient
is documented to have of primary vaccination with the ``active'' (not
placebo) COVID-19 vaccine candidate, for which vaccine efficacy has
been independently confirmed (e.g., by a data and safety monitoring
board) or if the clinical trial participant from the U.S. sites had
received a COVID-19 vaccine that is neither approved nor authorized for
use by the FDA but is listed for emergency use by the WHO. Currently-
authorized FDA vaccines include Janssen (Johnson & Johnson), which is a
single-dose primary vaccination, and Pfizer-BioNTech and Moderna, which
have a two-dose primary vaccination series. This definition is
consistent with the CDC definition of fully vaccinated (CDC, September
16, 2021).
    The definition of ``fully vaccinated'' also means a person's status
2 weeks after receiving the second dose of any combination of two doses
of a COVID-19 vaccine that is approved or authorized by the FDA, or
listed as a two-dose series by the WHO (i.e., heterologous primary
series of such vaccines, receiving doses of different COVID-19 vaccines
as part of one primary series). The second dose of the series must not
be received earlier than 17 days (21 days with a 4-day grace period)
after the first dose (CDC, October 15, 2021). OSHA has included this
because people who have received a heterologous primary vaccination
series (including mixing of mRNA, adenoviral, and mRNA plus adenoviral
products) are considered by the CDC to also meet this definition. OSHA
considers a vaccination series that meets the definition in
subparagraph (ii) to be a primary vaccination for purposes of the
requirements to support vaccination in paragraph (f).
    The employer obligations under the ETS differ based on whether each
employee is fully vaccinated. This definition is relevant to the
definition of mandatory vaccination policy, in this paragraph (c), as
well as the provisions under paragraph (d) regarding written
vaccination policy requirements and relevant procedures for workers who
are fully vaccinated. Paragraph (e)(2) also addresses fully vaccinated
employees, including the determination of vaccination status and
acceptable forms of proof. Lastly, the definition provides clarity with
regard to the requirements of paragraphs (g) and (i) respectively,
which contain requirements for regular COVID-19 testing and face
covering use among employees who are not fully vaccinated.
    Paragraph (e) requires employers to determine each employee's
vaccination status, including whether they are fully or partially
vaccinated. By ``partially vaccinated,'' OSHA means someone who has
started a primary vaccination series but not completed it (e.g., has
received one dose of a two-dose series) or has completed their primary
vaccination and two weeks have not elapsed since the last dose of the
primary vaccination.
    A ``mandatory vaccination policy'' is an employer policy requiring
each employee to be fully vaccinated. To meet the definition of a
mandatory vaccination policy, the policy must require: Vaccination of
all employees, including vaccination of all new employees as soon as
practicable, other than those employees (1) for whom a vaccine is
medically contraindicated, (2) for whom medical necessity requires a
delay in vaccination,\91\ or (3) who are legally entitled to a
reasonable accommodation under federal civil rights laws because they
have a disability or sincerely held religious beliefs, practices, or
observances that conflict with the vaccination requirement. OSHA
intends that ``employee,'' as used in this definition, includes only
employees that are covered by this ETS and does not include employees
who are excluded from coverage under paragraph (b)(3).
---------------------------------------------------------------------------

    \91\ As defined by CDC's informational document, Summary
Document for Interim Clinical Considerations for Use of COVID-19
Vaccines Currently Authorized in the United States (CDC, September
29, 2021).
---------------------------------------------------------------------------

    Paragraph (d)(1) of the standard requires an employer to establish,
implement, and enforce a written mandatory vaccination policy that
meets this definition. The benefits of vaccination, including the
effectiveness of vaccination mandates, are discussed in Grave Danger
(Section III.A. of this preamble) and Need for the ETS (Section III.B.
of this preamble).
    OSHA recognizes that vaccination policies may vary, as indicated in
paragraph (d)(2). Any policy that permits the employee to choose
between vaccination and COVID-19 testing and face covering use would
not be considered a mandatory vaccination policy under paragraph
(d)(1), although such policy is permissible under paragraph (d)(2). In
some cases, employers may implement vaccination policies that differ by
location or type of business operation and thus the application of
paragraph (d)(2) might vary across an employer's workforce. This is
discussed in greater detail in the Summary and Explanation for
paragraph (d) (Section VI.D. of this preamble).
    A ``respirator'' is a type of PPE that is certified by NIOSH under
42 CFR part 84 or is authorized under an EUA by the FDA. These
specifications are intended to ensure some consistent level of testing,
approval, and protection and to prevent the use of counterfeit
respirators that will not offer adequate protection, which is important
because respirators are intended to protect the wearer when directly
exposed to hazards. Respirators protect against airborne hazards by
removing specific air contaminants from the ambient (surrounding) air
or by supplying breathable air from a safe source. Common types of
respirators include filtering facepiece respirators (e.g., N95),
elastomeric respirators, and powered air-purifying respirators (PAPRs).
Face coverings, facemasks, and face shields are not respirators.
    As stated above, there are various types of respirators that would
fall within this definition. A filtering facepiece respirator (FFR) is
a negative-pressure particulate respirator with a non-replaceable
filter as an integral part of the facepiece or with the entire
facepiece composed of the non-replaceable filtering medium. N95 FFRs
are the most common type of FFR and are the type of respirator most
often used to control exposures to infections transmitted via the
airborne route. When properly worn, N95 FFRs filter at least 95% of
airborne particles. An

elastomeric respirator is a tight-fitting respirator with a facepiece
that is made of synthetic or rubber material that permits it to be
disinfected, cleaned, and reused according to the manufacturer's
instructions. Elastomeric respirators are equipped with replaceable
cartridges, canisters, or filters. Lastly, a powered air-purifying
respirator (PAPR) is an air-purifying respirator that uses a blower to
force the ambient air through air-purifying elements to the inlet
covering.
    This standard does not require the use of respirators. This
definition is included because it relates to paragraph (i)(1)(iii),
which exempts employees from wearing face coverings when they are
wearing respirators or facemasks. In addition, paragraph (i)(4)
requires employers to permit employees to wear a respirator instead of
a face covering and permits employers to provide respirators to their
employees, instead of face coverings. When respirators are used
pursuant to paragraph (i)(4), the employer must also comply with Sec.
1910.504, the Mini Respiratory Protection Program.
    NIOSH has developed a set of regulations in 42 CFR part 84 for
testing and certifying non-powered, air-purifying, particulate-filter
respirators. To help address concerns about availability during the
COVID-19 pandemic, the FDA has issued EUAs for certain PPE products,
including respiratory protective devices such as respirators. For the
purposes of this standard, respirators certified by NIOSH, under 42 CFR
part 84 or authorized under an EUA by the FDA meet the definition.
Additional information on such respirators can be found in relevant FDA
and NIOSH guidance.
    A ``workplace'' is a physical location (e.g., fixed, mobile) where
the employer's work or operations are performed. It does not include an
employee's residence, even if the employee is teleworking from their
residence. Examples of fixed locations include: Offices, retail
establishments, co-working facilities, and factories or manufacturing
facilities. A workplace includes the entire site (including outdoor and
indoor areas, a structure or a group of structures) or an area within a
site where work or any work-related activity occurs (e.g., taking
breaks, going to the restroom, eating, entering or exiting work). The
workplace includes the entirety of any space associated with the site
(e.g., workstations, hallways, stairwells, breakrooms, bathrooms,
elevators) and any other space that an employee might occupy in
arriving, working, or leaving. Examples of employees who have mobile
workplaces include maintenance and repair technicians who go to homes
or businesses to provide repair services, or those who provide delivery
services.

References

Centers for Disease Control and Prevention (CDC). (2021, June 14).
Nucleic Acid Amplification Tests. https://www.cdc.gov/coronavirus/2019-ncov/lab/naats.html. (CDC, June 14, 2021).
Centers for Disease Control and Prevention (CDC). (2021, September
16). When You've Been Fully Vaccinated: How to Protect Yourself and
Others. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html. (CDC, September 16, 2021)
Centers for Disease Control and Prevention (CDC). (2021, September
29). Summary Document for Interim Clinical Considerations for Use of
COVID-19 Vaccines Currently Authorized in the United States. https://www.cdc.gov/vaccines/covid-19/downloads/summary-interim-clinical-considerations.pdf. (CDC, September 29, 2021)
Centers for Disease Control and Prevention (CDC). (2021, October 7).
Interim Guidance for SARS-CoV-2 Testing in Non-Healthcare
Workplaces. https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/testing-non-healthcare-workplaces.html. (CDC, October
7, 2021)
Centers for Disease Control and Prevention (CDC). (2021, October
15). Interim Public Health Recommendations for Fully Vaccinated
People. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html. (CDC, October 15, 2021)
Equal Employment Opportunity Commission (EEOC). (2021, October 25).
What You Should Know About COVID-19 and the ADA, the Rehabilitation
Act, and Other EEO Laws. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
(EEOC, October 25, 2021)
Food and Drug Administration (FDA). (2020, November 16). COVID-19
Test Settings: FAQs on Testing for SARS-CoV-2. https://www.fda.gov/medical-devices/coronavirus-covid-19-and-medical-devices/covid-19-test-settings-faqs-testing-sars-cov-2. (FDA, November 16, 2020)
Food and Drug Administration (FDA). (2021a, October 14). In Vitro
Diagnostics EUAs--Antigen Diagnostic Tests for SARS-CoV-2. https://www.fda.gov/medical-devices/coronavirus-disease-2019-covid-19-emergency-use-authorizations-medical-devices/in-vitro-diagnostics-euas-antigen-diagnostic-tests-sars-cov-2. (FDA, October 14, 2021a)
Food and Drug Administration (FDA). (2021b, October 14)). In Vitro
Diagnostics EUAs--Molecular Diagnostic Tests for SARS-CoV-2. https://www.fda.gov/medical-devices/coronavirus-disease-2019-covid-19-emergency-use-authorizations-medical-devices/in-vitro-diagnostics-euas-molecular-diagnostic-tests-sars-cov-2. (FDA, October 14, 2021b)
Schulte P et al. (2021, May 19). Proposed Framework for Considering
SARS-CoV-2 Antigen Testing of Unexposed Asymptomatic Workers in
Selected Workplaces. J Occup Environ Med. 2021 Aug; 63(8): 646-656.
Published online 2021, May 19. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8327768/. (Schulte et al., May 19, 2021)

D. Employer Policy on Vaccination

    Vaccination is a vital tool to reduce the presence and severity of
COVID-19 cases in the workplace, in communities, and in the nation as a
whole. Despite the robust protection against COVID-19 that vaccination
affords, millions of eligible individuals have not yet been vaccinated.
Current efforts to increase the proportion of the U.S. population that
is fully vaccinated against COVID-19 are critical to ending the COVID-
19 pandemic (CDC, September 15, 2021). As described more fully in Need
for the ETS (Section III.B. of this preamble), mandatory vaccination
policies work. Therefore, OSHA has determined that requiring or
strongly encouraging vaccination--the most effective and efficient
control for reducing COVID-19--is key to ensuring the protection of
workers against the grave danger of exposure to SARS-CoV-2 in the
workplace (see Grave Danger, Section III.A. of this preamble).
Therefore, this ETS requires employers to adopt mandatory vaccination
policies for their workplaces, with an exception for employers that
instead adopt a policy allowing employees to elect to undergo regular
COVID-19 testing and wear a face covering at work in lieu of
vaccination. In Need for the ETS (Section III.B of this preamble), OSHA
explains its rationale for providing the exception.
    Paragraph (d) of this ETS is a critical element in ensuring
employees' protection, as it requires covered employers to develop,
implement, and enforce written policies on COVID-19 vaccination for
their workforces. Paragraph (d)(1) requires the employer to establish,
implement, and enforce a written mandatory vaccination policy. As
defined in paragraph (c), a mandatory vaccination policy is an employer
policy requiring each employee to be fully vaccinated. Such a policy
must require vaccination of all employees, other than those employees
who fall into one of three categories: (1) Those for whom a vaccine is
medically contraindicated, (2) those for whom medical necessity
requires a delay in

vaccination, or (3) those who are legally entitled to a reasonable
accommodation under federal civil rights laws because they have a
disability or sincerely held religious beliefs, practices, or
observances that conflict with the vaccination requirement. The policy
must also require all new employees to be vaccinated as soon as
practicable.
    Paragraph (d)(2) is a limited exemption from the mandatory
vaccination policy requirement. As discussed in Need for the ETS
(Section III.B. of this preamble), vaccination mandates are effective
at increasing overall vaccination rates and protecting employees and,
therefore, the agency encourages all employers to implement a mandatory
vaccination policy. Under paragraph (d)(2), however, employers can
avoid the mandate in paragraph (d)(1) if the employer establishes,
implements, and enforces a written policy allowing any employee not
subject to a mandatory vaccination policy to choose either to: (1) Be
fully vaccinated against COVID-19 or (2) provide proof of regular
testing for COVID-19 in accordance with paragraph (g) of this section