By Samantha Burns and Matt Anthony

Current Status of the ETS

The Emergency Temporary Standard (ETS) was published in the Federal Register on November 5, 2021 (effective date). On November 6, 2021, the Fifth Circuit Court issued a Stay Order blocking the enforcement and implementation of the ETS. On December 17, 2021, the Sixth Circuit Court lifted the Stay, meaning that employers will have to comply with the ETS unless the Supreme Court rules otherwise. The Supreme Court has scheduled oral arguments on January 7, 2022. As the High Court will not decide whether to block the directive until after the arguments are heard, the ETS remains in effect at this time. We cannot predict how the Supreme Court will rule on this matter, so employers subject to the OSHA ETS should prepare to comply with the standard.

Update: Following the initial posting of this article, the Supreme Court issued a ruling that effectively blocked OSHA’s COVID-19 Vaccination and Testing ETS. Therefore, employers will not be required to comply with any vaccine or testing requirements set forth in the ETS. Although employers are no longer required to comply with this ETS, we still encourage all employers to continue reading this post for helpful information regarding the general requirements of Religious Organizations to comply with OSHA regulations. Also, for any employers who are still interested in developing a vaccine or testing policy, this post includes links to some Policy Templates that may be used as a starting point for drafting such a policy.

Current Deadlines for Employer Compliance 

Per OSHA, employers currently have until January 10 to develop compliance policies and until February 9 to begin complying with the standard’s testing requirements. While employers should prepare to meet these current deadlines, with litigation still pending, it is possible that the compliance dates of the ETS could change. Therefore, employers are encouraged to visit OSHA’s COVID-19 Vaccination and Testing ETS webpage for additional updates.


General Applicability
OSHA has two regulatory functions: setting standards and conducting inspections to ensure that employers are providing safe and healthful workplaces.  Employers must become familiar with the standards applicable to their workplaces and eliminate hazards. In general, the Occupational Safety and Health Act of 1970 (“Act”) covers all employers and their employees in all fifty states.  Any employer who employs one or more employees is considered an “employer engaged in a business affecting commerce who has employees” and is thus covered under the Act. See 29 C.F.R. #1975.4(a).

Applicability to Churches and Religious Organizations
Churches are not exempt from OSHA regulations. Churches or religious organizations are considered employers under the Act where they employ one of more persons in secular activities. While churches are not specifically exempted under the Act, OSHA regulations treat churches as a special case. In dealing with Religious Organizations as Employers, OSHA distinguishes between religious activities and secular activities when determining whether to enforce requirements.

As a matter of Enforcement, OSHA will not regard “the performance of, or participation in, religious services” as employment under the Act. Persons regarded as non-employees under the Act will not be covered by OSHA. Although purely religious activities do not fall within the scope of the Act, if a Church ventures beyond purely spiritual pursuits, it will be subject to OSHA requirements when persons are regarded as employees under the Act and are thus covered by OSHA. The regulations provide some clear examples of coverage and noncoverage of religious organizations as employers:

Cases of Noncoverage:

Cases of Coverage:


General Compliance with OSHA Standards
While there are distinctions within a religious organization as to who is covered by OSHA and who is not, a church should always follow the basic principle of maintaining a safe and hazard free working environment.  It is important that all churches review OSHA guidelines and voluntarily comply with them. 

Compliance with OSHA’s COVID-19 Vaccination and Testing; Emergency Temporary Standard
The COVID-19 Vaccination and Testing ETS establishes binding requirements to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 in the workplace. It is important that all churches review OSHA guidelines for and make a good faith effort to comply with them. The Church can begin by visiting the various links provided by OSHA below:

The requirements set forth by the ETS are limited to employers with 100 or more employees at any time this ETS is in effect. All individuals who are “employees” under OSHA are counted in the total number when determining whether an employer meets the Minimum “100 or More Employees” Requirement for the ETS.

Related Organizations
Two or more related entities may be regarded as a single employer for OSHA purposes if they handle safety matters as one company (i.e., any subsidiary organizations of a Church will be integrated under the “umbrella” of the Church). Example: If your church maintains a coffee shop, retail store, and factory, the Church will be considered an integrated single employer for all employees working in each of these entities. As the Single Employer – Church will be required to include all employees working in the church, coffee shop, retail store, and the factory in its count for number of employees.

Applicability of ETS on Employers with Fluctuating Number of Employees
If the Employer had 100 or more employees on November 5, 2021, the ETS will apply to Employer (even if number of employees has since decreased). If the Employer has had fewer than 100 employees but subsequently hires more workers and hits the 100-employee threshold, the Employer would then be expected to come into compliance with the ETS.

Determining Whether an Individual is a Covered Employee for the ETS
Employers must include all employees across all their U.S. workplaces, regardless of vaccination status or where they perform their work. In other words, all employees—regardless of whether they work In-Office, Off-Site, At-Home, Outdoors, etc.—shall be included in Employer’s count.

Individuals NOT Covered Under ETS: 

Individuals Covered Under ETS: 

Examples for Counting Employees and Determining whether Employer meets the 100-Employee Threshold of ETS:


The ETS requires employers to (1) develop, implement, and enforce a mandatory covid-19 protection policy; (2) determine and maintain records of each employee’s vaccination status; (3) support vaccination by providing certain accommodations to employees; and (4) keep OSHA informed of certain occurrences.

(1) Employer Policy on Vaccination

While OSHA strongly encourages all employers to implement a mandatory vaccination policy, the Agency is currently providing Employers with an alternative policy option. The ETS currently requires Employers to adopt one of two (2) written policy options: (1) Mandatory Vaccination Policy, or (2) Vaccination with Alternative Testing and Face Covering Policy.

Mandatory Vaccination Policy (Option #1)

  1. Vaccine is medically contraindicated,
  2. Medical necessity requires a delay in vaccination, or
  3. Individual is 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

Mandatory Vaccine Policy – TEMPLATE (provided by OSHA)

Vaccination with Alternative Testing and Face Covering Policy (Option #2)

  1. Be fully vaccinated against COVID-19; or
  2. Provide proof of regular testing for COVID-19 and wear a face covering 

Vaccination with Testing & Facemask Alternative Policy – TEMPLATE (provided by OSHA)

Developing Relevant Procedures for Two Sets of Employees Under Both Policy Options 

Additional Information Regarding Policy and Procedure Requirements

ETS – Frequently Asked Questions (FAQ) 

(2) Determine and Maintain Records of Each Employee’s Vaccination Status

Employers must require employees to provide an acceptable proof of vaccination status, including whether they are fully or partially vaccinated. If no proof of vaccination is provided, employer must treat such employees as unvaccinated. 

Determining Vaccination Status of Employees

Maintaining Records of Vaccinations

Additional Information Regarding Vaccination Determination and Record Maintenance

ETS – Frequently Asked Questions (FAQ) 

(3) Support Vaccination by Providing Certain Accommodations to Employees

Employers must support vaccination by providing employees with reasonable time, including up to four (4) hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose.

Additional Information Regarding Vaccination Support

(4) Keep OSHA Informed of Certain Occurrences 

Employers are required to report work-related COVID-19 fatalities to OSHA within eight (8) hours of learning about them, and to report work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about hospitalization. 

How to Report

  1. By telephone to the OSHA Area Office that is nearest to the site of the incident; 
  2. By telephone to the OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-6742); 
  3. By electronic submission using the reporting application located on OSHA’s public website at www.osha.gov.


Impact on State and Local Laws
The ETS will supersede any State and Local laws regarding the adoption and enforcement of any workplace requirements relating to these issues, except under the authority of a Federally approved state plan. In particular, OSHA intends to preempt (block) any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing.

Governor Abbott’s Current Executive Order

Future Executive Orders by Governor Abbott

Pending Litigation
As previously mentioned, we cannot predict how the Supreme Court will rule on this matter, or how quickly they will rule on this matter following the January 7th Hearing, so the Church should prepare to comply with the standard as soon as January 10, 2021. While Church should prepare to meet current deadlines, with litigation pending, it is possible that the ETS will be overturned, or that specific requirements (including compliance dates) could be changed. Therefore, the Church is encouraged to regularly visit OSHA’s COVID-19 Vaccination and Testing ETS webpage for additional updates following the Supreme Court Hearing.


Churches should prepare to meet compliance deadlines for ETS requirements by taking the following steps:

  1. Review the OSHA-Provided Policy Templates mentioned above and determine which policy works best for your organization.
  2. Mandatory Vaccine Policy – TEMPLATE (provided by OSHA)
  3. Vaccination with Testing & Facemask Alternative Policy – TEMPLATE (provided by OSHA)
  4. Depending on Leaderships decision, Churches should begin developing and drafting the policies required under the ETS and make sure that the policies are adapted to the Church’s unique workplace(s). While you don’t need to implement these policies by January 10, the Church should be ready to implement them as soon as possible and be prepared to show good faith efforts towards putting them in place.
  5. Develop programs that would allow you to conduct compliance training for your management team and deliver information about your policies to your employees as required under the ETS. Conducting this training and promoting information will help demonstrate the Church’s good faith efforts.
  6. If a Church decides to provide the Testing Option, then it should also focus on drafting its testing requirements to suit its workplace needs and work on developing its plan to implement those testing requirements by February 9.
  7. Finally, get to work on collecting vaccination data. As Churches will be required to maintain a detailed roster of all employees, along with their specific vaccination status, if a Church hasn’t already requested this information from its employees, this would be a good time to send out requests for required information.
  8. This could be accomplished by emailing a questionnaire to employees with the initial information needed for the roster. This form can also offer instructions for providing the Church with proof of vaccination and/or documentation required for any claimed exemptions.

If your Church needs assistance in developing, documenting or implementing any of the policies or considerations set forth in this article, the church lawyers who comprise our Church Law Group stand ready to assist you or your organization to ensure compliance with OSHA’s requirements or to provide sound legal advice regarding applicability of these requirements or any related matters.

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