OSHA ETS for vaccination and testing stay lifted

ALERT: OSHA mandate heads to Supreme Court and new proposal could affect all employers

December 21, 2021

OSHA’s vaccine-or-testing mandate stay has been lifted and appealed to the Supreme Court. OSHA is also proposing a permanent rule that could affect all employers.

Organizations with at least 100 employees may soon need to track their employees’ vaccination status. A recent court order would put OSHA’s mandate back in place that requires employers with 100 or more employees to track employee vaccination status and create a written policy about employees being vaccinated or tested weekly.

Background

On November 5, OSHA issued an Emergency Temporary Standard (ETS or Standard) that required employers with 100+ employees to track employee vaccination status, create a written policy about vaccine-or-testing, and implement other COVID-19 related directives.

The ETS was originally stayed, but that stay has now been lifted. An emergency appeal to the U.S. Supreme Court was filed, but employers should not wait for a decision to start implementation.

Suggested action & deadlines

While waiting for the final ruling from the Supreme Court, affected employers should act immediately. Employers should begin providing notice to employees and gathering vaccination information now. Finalizing the policy can take place as litigation clears up and an outcome is determined.

OSHA has provided a timeline for enforcement given the latest ETS legal status. It will begin enforcement of the ETS on January 10, 2022. OSHA will not issue citations for noncompliance with the Standard’s testing requirements before February 9, 2022, so long as the employer is exercising reasonable, good-faith efforts to come into compliance with the Standard.

A new permanent proposal in the works?

The ETS may remain in place for only six months. As a result, OSHA is considering a permanent vaccine-or-testing mandate separate from the ETS being litigated.

OSHA has submitted the proposal and it is open for comments through January 19, 2022. Key areas of interest for all employers include:

  • Whether employers with fewer than 100 employees should be covered by the permanent standard
  • Whether rules should be expanded to include fully vaccinated workers (masking, etc.)
  • How a prior COVID-19 infection could affect vaccination status
  • Whether there should be a strict vaccination mandate with no alternative compliance options (like testing in the ETS)
  • Whether employers have COVID-19 testing and removal policies and their requirements

Additional information

AGH will monitor updates and provide more details in the coming weeks as it becomes available. For employer-related HR questions, contact Carrie Cox using the information below.

Carrie Cox

Senior Consultant
HR & Org. Development Services

Carrie has experience in a variety of human resource functions, including labor laws, compensation structures, employee classification, benefits administration, performance management and human resource best practices. She has served clients in a number of industries, including manufacturing, construction, banking and not-for-profits. Carrie is a member of the national and local chapters of the Society of Human Resource Professionals (SHRM) and serves on the Wichita chapter board of directors.

She is a certified practitioner for the Myers-Briggs Type Indicator® and the Hay Group’s Emotional and Social Competency Inventory. Her additional certifications include Professional in Human Resources (PHR) from the Human Resource Certification Institute and SHRM-CP designated by the SHRM.

NOTE: Any advice contained in this material is not intended or written to be tax advice, and cannot be relied upon as such, nor can it be used for the purpose of avoiding tax penalties that may be imposed by the IRS or states, or promoting, marketing or recommending to another party any transaction or matter addressed herein.

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