Update on OSHA Vaccine Mandate for Private Employers
December 29 , 2021
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 last week 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 .
6 DITCHMEN • DECEMBER 2021