To that end, the ETS preempts states and their political subdivisions from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a federally approved state plan. There are currently 22 state plans covering both private sector and state and local government workers, and there are six state plans covering only state and local government workers. State plans are required to adopt and enforce occupational standards that are at a minimum as effective as federal OSHA’s requirements. Therefore, state plans must adopt this ETS or an ETS that is at least as effective as this ETS by December 5, 2021. State plans must notify Federal OSHA of the action they will take by November 20, 2021. The state plan standard must remain in effect for the duration of the ETS. New York State has not adopted a state plan for private employers. The New York Department of Labor (NYSDOL) has not yet advised whether the ETS supersedes the obligations under the HERO Act, as some provisions of the HERO Act are not directly covered by the ETS. Additional Resources OSHA has provided guidance, including numerous fact sheets, such as an explanation of the rationale (https://www.osha.gov/sites/default/files/publications/OSHA4161.pdf) and scope of the ETS, a summary (https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf) of key points about the binding rules, further information (https://www.osha.gov/sites/default/files/publications/OSHA4159.pdf) about employer obligations and workers’ rights under the ETS, and Frequently Asked Questions (https://www.osha.gov/coronavirus/ets2/faqs) that OSHA will update as it receives questions.
