On December 17, a federal court issued a decision that reinstated OSHA’s Emergency Temporary Standard (ETS) mandating a Covid-19 vaccine for all employees in private companies with 100 or more employees.
The decision was immediately appealed to the U.S. Supreme Court, which announced that it will hold on January 7, 2022, a special hearing on this case and its appeal. 27 U.S. states and a number of business and religious groups are asking the court for emergency action to block the OSHA ETS. It is not known when the top court would issue a decision, but it could be within days or weeks of the January hearing.
In short, OSHA’s ETS is again in effect, and employers should continue or resume preparing for compliance.
OSHA announced last week that it will “once again implement” the ETS but exercise its “enforcement discretion” on ETS compliance dates, which are rapidly approaching.
Waiting for clarity from the courts may leave little time for employers to prepare policies and practices if the ETS is upheld. Until the U.S. Supreme Court delivers a ruling to give employers lasting guidance on a federal vaccine mandate enforced by OSHA, NUCA members should continue to make arrangements assuming that the U.S. Supreme Court will uphold the OSHA mandate. Employers should therefore continue preparing for compliance with the many requirements of the ETS, including written COVID policies, face coverings for unvaccinated individuals, rosters of employee vaccination statuses, and collecting proof of vaccination. OSHA has indicated that it will not issue citations for non-compliance with most requirements of the ETS before January 10, 2022. If an employer chooses to allow weekly testing in lieu of vaccination, OSHA will not issue citations for non-compliance with the testing requirements in the ETS before February 9, 2022. For these deadlines, the employer must have made “reasonable, good faith efforts” to come into compliance to avoid penalties. Employers should make sure they are: • Asking their employees to find out who is vaccinated and who is unvaccinated, and request proof of vaccination. • Decide if your company will allow weekly Covid testing as an alternative to vaccination. If testing is chosen, you should consider the logistics of testing, who will be responsible for its costs, how the results will be collected and archived, and ensuring negative results are returned on time. • Plan for evaluating accommodation requests due to a medical condition, disability, or religious belief. NUCA will issue continued informational guidance to the membership on our “Covid-19 Vaccine Mandates” webpage, nuca.com/vaxmandate. We urge you to check it regularly for the latest information on this OSHA directive