5 Things to do in Response to OSHA’s COVID-19 ETS Now That It Is Stayed

OSHA’s Emergency Temporary Standard addressing COVID-19 has been stayed by the Fifth Circuit Court of Appeals.  So, now what?  If you have more than 100 employees in your business, you should be asking yourself this question.

As we are sure you know, the Occupational Safety and Health Administration (OSHA) issued a new Emergency Temporary Standard (ETS) requiring employers with over 100 employees to address the risk of COVID-19 in the workplace by requiring their employees to be vaccinated or submit to weekly testing.  The standard became effective on November 5^th when it was published in the Federal Register.  However, just a day later, the Fifth Circuit Court of Appeals stayed the enforcement of the ETS.  This means that covered employers do not have to comply with the ETS – for now.

Because lawsuits have been filed in a number of jurisdictions requesting a permanent injunction of the ETS, there is a good chance that employers may never have to comply with the ETS.  However, you cannot rely on the possibility of that outcome and ignore preparing for the opposite reality – that the stay would be lifted and a business which is not complying with the ETS would risk a potential citation at the cost of $13,653.00 per violation.

So, we believe it is wise to follow best practices and suggest that you continue to prepare for the possibility – however unlikely – that the ETS will stand, and covered employers will have to comply with it.  At minimum, do these five things to prepare for the potential that the ETS becomes enforceable again:

1. Acquaint yourself with the ETS requirements. OSHA has prepared and provided some “cheat sheets” which condense the 490-page ETS down into bit sized pieces including an ETS Summary.  For guaranteed sleep results, you may also review (although we don’t believe that this is necessary) the actual text of the regulation 29 CFR 1019 Subpart U – COVID-19.

2. View the OSHA-sponsored video which presents as a 30-minute webinar and explains the steps you must take in response to the ETS to remain in compliance.  It is linked here:  COVID-19 Vaccination and Testing Emergency Temporary Standard – YouTube

3. Review the OSHA provided templates.  OSHA has provided employers with a “Mandatory Vaccination Policy Template” and the “COVID 19 Vaccination, Test and Face Covering Policy Template.”   Use them as a basis for preparing a policy or plan for your business.

4. Talk with Regulatory Support Services about any questions or concerns you may have. We are here to help you and can customize your compliance plans to fit your specific business needs.

5. Get involved. OSHA has stated that this ETS will be used for a potential permanent standard.  You can add your two cents into the record by making a comment in the proceeding.  Make your comments by clicking this link: Regulations.gov .   Written comments on any aspect of the ETS must be submitted by December 6, 2021, in Docket number OSHA-2021-0007.

No one is certain about how or when there will be a definitive direction for employers with regard to this Emergency Temporary Standard.  We will assure you, however, that Regulatory Support Services will keep you apprised of what your compliance responsibilities are and how to meet them.  We work continually to ease your compliance burdens by providing you with the most current regulatory information and supporting you in meeting your compliance responsibilities.