OSHA Emergency Temporary Standard Vaccine Mandate for Large Employers Looming

After several stops and starts, the OSHA ETS, mandating that employers with 100 or more employees implement a “vax or test” requirement for their workplaces, is back on – for now. On December 17, 2021, the 6^th Circuit Court of Appeals lifted a stay of the mandate, allowing the ETS to proceed. Immediately thereafter, the matter was appealed to the US Supreme Court and oral arguments are scheduled for January 7, 2022. In the meantime, however, the mandate remains in effect. To address the uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates and will not issue citations for non-compliance with any requirements of the ETS before January 10 and 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. You can find the OSHA “Litigation Update” and statement here: https://www.osha.gov/coronavirus/ets2

This means that large employers with 100 or more employees will need to take action to comply with the following deadlines:

By January 10^th:

• Have a policy in place that, among other things, (a) requires employees to be vaccinated; (b) offers employees four hours of paid time off to receive the vaccine and a reasonable amount of sick leave to recover from its effects; (c) requires all unvaccinated employees to wear face coverings while in the presence of others. Sample mandatory vaccine policies can be found here, https://www.osha.gov/coronavirus/ets2, under “Implementation.”
• Decide whether to allow employees to opt for weekly testing and regular masking rather than vaccination and if so, identify the testing protocol and logistics and plan for tracking test reporting. Sample policies for Vaccine or Testing and Face Coverings can be found here, https://www.osha.gov/coronavirus/ets2, under “Implementation.”
• Have an up-to-date log of the vaccination status of all employees. The ETS has specific recordkeeping requirements. See the OSHA ETS FAQs, Section 4, here: https://www.osha.gov/coronavirus/ets2/faqs, for more information on collecting and retaining employees’ vaccine status. If the employer previously verified an employee’s vaccine status and retained a record of the employee’s status, the employer is not required to re-evaluate vaccination status for a fully vaccinated employee.

By February 9^th:

• Begin weekly testing for all unvaccinated employees who enter the workplace (including those for whom religious or disability accommodations are granted). For unvaccinated employees who only enter the workplace rarely, OSHA requires they be tested within the seven days prior to entering a work facility.
• Testing can be completed using over-the-counter tests but only if observed by the employer or a telehealth doctor unless the over-the-counter test can be confirmed by a digital time stamp. This represents a recent change by OSHA, and you can find out more information about the use of over-the-counter tests at the OSHA ETS FAQ Section 6, 6.Q, here https://www.osha.gov/coronavirus/ets2/faqs.  
• Although OSHA does not require employers to pay for the testing, other federal, state, or local laws may require employers to do so. For example, an employer may be responsible to pay for testing provided as an accommodation for a medical or religious exemption depending on the facts of the situation. Before requiring employees to pay for testing, employers should consult with their private legal counsel or Associated Industries to see if doing so is permissible under applicable state or local law.

The OSHA ETS has too many moving parts to cover in this brief alert. Affected employers can find more resources at the OSHA ETS site here: https://www.osha.gov/coronavirus/ets2, and answers to may questions about the ETS at the extensive FAQ site here: https://www.osha.gov/coronavirus/ets2/faqs.

Employers may also want to review the OSHA December 2021 webinar which provides a thorough overview of the ETS. You can find the webinar here: https://www.youtube.com/watch?v=S2zMx2USLZs and a copy of the webinar slides at https://www.osha.gov/coronavirus/ets2 (under “About the Standard”, scroll down to “Webinar/Slides”).

Finally, Washington employers remain somewhat in limbo on the OSHA ETS. Washington is one of several states with OSHA-approved state plans, meaning Washington may choose to implement its own state rules regarding vaccines, testing, face coverings, and other issues, provided the state’s rules are at least as restrictive as the OSHA ETS. Governor Inslee signaled back in November 2021 that the state plan would closely mirror the OSHA plan, but there has been no further comment from the state since the various stops and starts of the ETS. In the meantime, large Washington employers would be wise to prepare for compliance with a state plan that looks much like the OSHA ETS.