OSHA Enforcement of Vaccine Mandate ETS to Proceed

All businesses with 100 employees or more must, again, direct attention and resources to complying with OSHA’s Emergency Temporary Standard (ETS).  The 6^th Circuit recently lifted the stay on the enforcement of the ETS which means that it is back in play and is enforceable.  OSHA has stated that the new compliance date is January 10, 2022, for all requirements other than the vaccination and testing requirement.  The vaccination and testing requirement compliance date is February 9, 2022.  The ETS is continuing to be challenged in courts throughout the nation, so its long-term viability remains in question.  However, because the ETS is currently enforceable and the initial two deadlines are within sight, best practice remains:  prepare an ETS compliant plan.

As a reminder, the ETS requires private employers with 100 or more employees to implement a policy requiring that all employees be vaccinated against COVID-19.  Although the employer may offer employees the option of submitting to weekly testing and wearing masks in lieu of vaccination, the employer is not required to make that option available.  The “religious exemption” continues to be available.

As we have suggested in previous posts, affected businesses must act now.  Develop a vaccination policy.  Develop protocols for –

• identifying unvaccinated employees
• collecting proof of vaccinations
• management of vaccination and testing records
• reviewing negative test results
• evaluating accommodation requests
• removal of noncompliant employees

Refer to the Regulatory Support Services blog post which outlines 5 things to do in response to OSHA’S ETS.  It provides additional resources to help you in your planning.

Although state-lead OSHA programs in states which have delegated authority to develop their own OSHA programs typically have an additional 30-day grace period in which to comply, OSHA has not made any statements as to whether a grace period will be extended.  So, again, the best practice is to prepare now to meet the new deadlines.

The 6^th Circuit’s ruling has been appealed and is now before the United States Supreme Court.  Arguments are set to take place January 7, 2022.