On Friday, December 17, the Sixth Circuit Court of Appeals dissolved the stay against the OSHA Emergency Temporary Standard on Vaccination and Testing (ETS). This means that employers with 100 or more employees that are taking steps to comply have a new compliance date of January 10, 2022, February 9 for the testing provisions. The later dates apply only as long as employers are expending good faith and reasonable efforts to work toward implementation. Employers not making compliance efforts may be cited for not meeting the original deadlines. Therefore, the wait-and-see choice could be risky.
Looking to the Supreme Court for an Opinion
Several groups have petitioned the Supreme Court to weigh in on this decision. If the requests are granted, which is not expected before December 30, the issue would likely be expedited, and the Supreme Court might provide an opinion before the new compliance dates. Employers that decide to wait and see might risk not only being cited by OSHA, but also having an even shorter window to get up to speed should the Supreme Court side with the ETS.
Employers that decide to put their compliance efforts into action have a number of steps they need to take.
9 Steps to Help Comply With the ETS
- Policy. Develop, implement, communicate, and enforce a mandatory COVID-19 vaccination policy or vaccination/testing policy. This will require employers to decide on which type of policy.
- Vaccine status. Determine employee vaccination status through acceptable proof and maintain related records for the duration of the ETS. This will require setting up a system or hiring a vendor to do so.
- Paid time off. Allow for employees to take up to four hours of paid time off to get vaccinated – for each dose (fully vaccinated does not currently include boosters); and reasonable paid time off (up to two days) to handle any side effects. This could require adjusting HRIS systems to track the leave.
- Testing. Ensure employees not fully vaccinated are tested for COVID-19 at least weekly; home testing is allowed only if observed by the employer or an authorized telehealth proctor.
- Notice. Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis and remove such employees from the workplace.
- Tracking. Within four hours of a request, provide OSHA with the aggregate number of fully vaccinated employees at the workplace, along with the total number of employees at that workplace. If employees ask for related information, be prepared to provide it by the end of the next business day.
- Face coverings. Ensure that, in most circumstances, employees not fully vaccinated wear face coverings when indoors or when in a vehicle with another person for work purposes.
- Reporting. Report work-related COVID-19 hospitalizations within 24 hours to OSHA and report work-related fatalities within 8 hours.
- Communication. Provide employees with information about the ETS requirements and workplace policies, vaccine efficacy, safety, and benefits; retaliation and discrimination protections; and criminal penalties for knowingly supplying false statements or documentation.
Of course, employees may request medical or religious exemptions to vaccine mandates, so employers should be prepared for that, as well.