Employers with 100+ employees must take steps by January 10th, 2022

-by Rebecca L. Gombos, Esq. and Kristina Kourasis, Esq.

The Occupational Safety and Health Administration’s “vaccination-or-test” Emergency Temporary Standard (“ETS”) requires that employees of employers with 100 or more employees be fully vaccinated against COVID-19 or tested weekly. This mandate was stayed.  However, on December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the stay, thus allowing the ETS to take effect.

Although the ETS opponents have asked the U.S. Supreme Court to reinstate the stay while legal challenges proceed before the Sixth Circuit, unless and until the Supreme Court or Sixth Circuit rules otherwise, employers will need to take immediate steps to comply with the ETS by the revised deadlines. The U.S. Supreme Court is scheduled to hear oral arguments on January 7, 2022.

According to OSHA, employers will now have until January 10, 2022 to develop compliant policies and until February 9, 2022 to begin testing programs. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any of the ETS requirements before these dates, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

What should employers do now? 

Unless and until the Supreme Court reinstates the stay or the Sixth Circuit strikes down the ETS, the ETS applies to all covered employers. Employers that paused their compliance efforts during the initial stay should strongly consider ramping up good faith compliance efforts to avoid potential enforcement actions while the litigation plays out. To avoid enforcement action by OSHA, employers should do the following by January 10:

  • Adopt an ETS-compliant vaccination policy;
  • Create a roster of each employee’s vaccination status containing the information specified in the ETS;
  • Collect proof of vaccination from employees who are fully or partially vaccinated and verify that the proof is in one of the formats acceptable under the ETS;
  • Implement the ETS face covering requirements for employees who are not fully vaccinated;
  • Provide supplemental paid time for employees to get vaccinated, as well as reasonable paid time to recover from side effects;
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related in-patient hospitalizations within 24 hours of learning about them; and
  • Provide employees with information required under the ETS, including that the OSH Act prohibits retaliation against employees who file an OSHA complaint.

Additionally, although the ETS testing requirement is effectively suspended until February 9, employers should consider developing compliant testing programs. Employers should also watch for expected guidance from the U.S. Department of Labor as to whether non-exempt employees must be paid for the time it takes them to be tested.

We will keep you updated on any further developments. In the meantime, please feel free to reach out to us if you have any questions.