Federal Court Vacates Stay on OSHA Vaccine Mandate

Six weeks after the Fifth Circuit Court of Appeals placed a temporary hold on the OSHA Emergency Temporary Standard (ETS) requiring mandated COVID vaccination or testing for employers with 100 or more employees, a three-judge panel of the Sixth Circuit Court of Appeals overturned the stay. This decision came as a surprise to many employers, who now have to comply with a January 10^th deadline.

Updated Compliance Deadlines for Employers

Employers in Federal OSHA jurisdictions were initially required to follow all aspects other than the testing requirements by December 6, and then subsequently be in compliance with all requirements by January 4, 2022. Due to the length of the stay on the original mandate those dates are no longer feasible, but OSHA has posted an updated compliance deadline plan.

While the agency can technically cite employers for noncompliance at any time, according to OSHA’s COVID-19 Vaccination and Testing ETS website, the agency “will not issue citations for noncompliance with any requirements of the ETS before January 10.” The agency also added that it “will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

What Should Employers Do Next?

Although OSHA has stated they will not cite employers before January 10^th, the agency and its compliance officers will expect to see employers starting to make good faith efforts to come into compliance. Below are some steps employers should take to show they are making efforts to comply with the new deadlines:

• Determine whether or not your company is covered by the ETS. As previously mentioned, “Covered Employers” are private employers with more than 100 employees that are already subject to federal OSHA regulations and are not already covered by a separately issued COVID-19 mandate; such as employers who are federal contractors covered by the Safer Federal Workforce mandate and healthcare employers covered by the Healthcare ETS. (Employers subject to State OSHA regulations will need to comply with standards that are at least as effective as the federal standards.)
• Develop the required written policy on vaccines, testing, and face coverings. It should require employees to either be fully vaccinated against COVID-19 or test for COVID-19 at least weekly and wear a face covering. Employers are not required to implement these policies before January 10th but having them in place or ready to be put in place are an excellent demonstration of good faith efforts.
• Begin maintaining records and roster of employee vaccination status. Employers who are already completely vaccinated can begin providing their proof of vaccination or self-attestation. Provide all employees with information on vaccines as well as the requirements of the ETS, including the updated deadlines.
• Ensure you are familiar with all of the requirements of the ETS. Other requirements include providing paid time off to employees to obtain their vaccines, “reasonable” time and paid sick leave to recover from any associated side effects, notification of employees when there is a positive COVID-19 case, and reporting to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.
• Keep an eye out for more updates. Although the Sixth Circuit Court of Appeals lifted the stay, an application for an emergency petition was quickly filed directly with the Supreme Court, asking them to immediately replace the stay.

Emplicity will be closely monitoring cases and updates related to OSHA’s ETS and will provide more information as it is received.