On Nov. 4, 2021, OSHA announced a COVID-19 vaccination and testing emergency temporary standard (ETS) to address COVID-19 infection in the workplace. The ETS requires private sector employers with 100 or more employees to implement a vaccination (or weekly testing) mandate.

Last Friday (Jan. 7, 2022), the U.S. Supreme Court held oral arguments on the validity of the ETS, but has yet to release its opinion on whether to uphold or strike the ETS. Questions from the Court suggest a majority of justices may be skeptical about OSHA’s legal authority to issue the OSHA ETS, which may result in the Court putting a halt to the rule. We may know the verdict as soon as tomorrow, if the Court’s decision is included in the opinion(s) to be published on January 13.

In the meantime, OSHA has resumed ETS implementation and enforcement nationwide. And applicable employers are expected to comply. See information below for an overview of OSHA’s requirements and updated deadlines, including Monday this week.

 

By Jan. 10 
Employers must develop and implement a written COVID-19 policy and communicate it to employees.

    • The policy needs to specify whether employers will require employee vaccination or allow for weekly testing.
    • Employers may issue one of the following policies to comply:
      • a policy requiring all employees to be fully vaccinated by February 9, 2022, subject only to qualifying for religious/medical exceptions/accommodations among which at least two required accommodations are testing and masking, or
      • a policy requiring all employees to be either fully vaccinated by February 9, 2022 or submit to weekly testing for COVID-19 and wear a face mask (i.e. in addition to being a required accommodation for those who qualify for religious/medical exceptions, testing and masking are alternatives to vaccination for those who simply object to getting vaccinated without a qualifying reason for exception/accommodation).
    • OSHA’s exemplars for these two policies are published on the OSHA ETS homepage under the “Implementation” heading.
    • Employers will need to determine the vaccination status and obtain acceptable proof of vaccination for each employee; create and maintain a roster of each employee’s vaccination status; follow notification procedures for positive COVID-19 cases; and ensure unvaccinated employees wear masks in the workplace.
    • Employers must provide employees paid time off to receive and recover from each primary vaccination dose.
    • Employers will need to immediately remove employees who report positive COVID-19 tests or diagnoses until return-to-work criteria are met.
    • While the ETS does not require employers to cover the cost of screening tests, employers should be aware of local laws or other collectively negotiated agreements that may dictate otherwise.

 

By Feb. 9 
Employers must begin enforcing the vaccine/testing requirements.

  • Employees who are not fully vaccinated must be tested weekly or within seven days before returning to work.
  • Employees must provide documentation of their test results to their employer.
  • Employees cannot administer and read their own tests. Employee home tests must be proctored by a telehealth professional or the employer.
  • Employers should review the testing regulations to make sure they are in compliance with all ETS requirements.
  • OSHA has said it will provide leniency to employers that have taken steps to comply with the rule in “good faith,” even if their compliance falls short of the rule’s standards.

 

Employer Next Steps

Private sector employers with 100 or more employees (subject to the ETS) must decide whether to proceed with drafting and communicating a policy (if not already) or wait for the U.S. Supreme Court’s decision. Although OSHA’s intention is to begin enforcement of this requirement, as a practical matter, OSHA may delay enforcement awaiting guidance from the Court – no guarantees.

Considerations for employers who are unsure how to proceed may include risk tolerance, employee relations, recruitment, and retention, as well as, staffing level, business circumstances, compliance posturing and opinions about COVID-19 mitigation.
 
Stay tuned for a decision from the U.S. Supreme Court.

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This blog and its contents are not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.