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OSHA ETS: What’s an Employer to Do?

Employers subject to OSHA’s Emergency Temporary Standard (the “ETS”, which requires employers with 100 or more employees to mandate vaccination or implement COVID testing and masking requirements) are in a bit of a predicament right now.

Legal Update:

On December 17, 2021, the Sixth Circuit lifted the prior stay of the ETS, meaning that the ETS is now in effect. In response, OSHA delayed the deadline for implementation of a vaccination policy and tracking of vaccination status to January 10th and the deadline for all employees to be vaccinated and/or subject to testing requirements to February 9th.  

However, on December 23rd, the United States Supreme Court scheduled the dispute over the stay for hearing on January 7, 2022; the states seeking the stay have also asked the Supreme Court to grant review of the ETS’s overall validity, ahead of the Sixth Circuit’s decision on this. Now many employers are wondering how much, if anything, they need to do to prepare for implementation of the ETS.

Reasonable Good Faith Efforts to Comply:

Although it is possible the Supreme Court may invalidate the ETS, employers should still take action. The good news is that OSHA stated that it will not issue citations for noncompliance before February 9th, so long as an employer is exercising reasonable, good faith efforts to implement the ETS.

The key requirements of the ETS and a number of the common questions associated with developing an implementation strategy for the ETS are outlined below.

Employees’ vaccination status must be determined.

  • How will employees be queried?

  • How will that information be transmitted and stored?

Employers will have to choose between a mandatory vaccination policy or one that allows employees to opt out of vaccination if they test weekly.

  • Which option is best for the employer?

  • Who will pay for weekly testing (i.e., will the employer pay for the tests)?

  • Will the employer require PCR or antigen tests?

  • Where or how will employees get tested (i.e., will a particular lab or brand of test be required)?

  • How will they submit their results?

  • How will the employer monitor whether unvaccinated employees test weekly and what their results are?               

Employers will have to implement certain protocols for removal of COVID positive employees from work as well as for reporting of work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours.

  • How will managers be trained on these sorts of obligations (so that they report what they know to the employer)?

  • Who will make these reports on behalf of the employer? 

We expect that the Supreme Court will rule promptly, so please stay tuned for more information.

This article is for informational purposes only and should not be considered legal advice. Please consult with your legal counsel regarding any specific situation, particularly given that this is a rapidly developing area of the law.

Written by Jordan Brownlow and Christie Newkirk from Carrington, Coleman, Sloman & Blumenthal, L.L.P.