As you likely know, late Friday, December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued a 2-1 decision lifting the stay on the Occupational Safety and Health Administration (“OSHA”) COVID-19 Emergency Temporary Standard (“ETS”). This action, which allows OSHA to move forward with implementing the ETS, removed the stay previously issued by the Fifth Circuit. (Is this going to be another long boring article about stuff nobody but you understands or cares about?) However, immediately following the Six Circuit’s decision, it was appealed to the U.S. Supreme Court. Justice Brett Kavanaugh, who handles all emergency appeals for the Sixth Circuit, subsequently ordered the Biden Administration to file its briefs on the matter by 4:00 pm on December 30, 2021 (you should read one of your articles to your grandchildren as a bedtime story, it’s guaranteed to put them right to sleep!). With that timeline, it’s unlikely we’ll have any decision until after January 1, 2022.
In the meantime, employers with 100 or more employees should prepare to implement the OSHA COVID-19 ETS in their workplaces. A good starting point is; OSHA’s ETS FAQs. OSHA stated that it will not issue citations for non-compliance with any requirements of the ETS before January 10, 2022. Further, OSHA will not issue citations for non-compliance with the ETS testing requirements before February 9, 2022, as long as the employer exercises reasonable, good faith compliance efforts. To help support that they’ve demonstrated good faith compliance efforts, employers should:
- Notify all employees of the ETS requirements—as a condition of employment, they will need to get vaccinated or be required to test weekly.
- Survey employees on their vaccination status, including a request for proof of vaccination, and record their vaccinated or unvaccinated status in a spreadsheet or other roster. The ETS further requires employers to maintain this documentation, including copies of each employee’s proof of vaccination, and record any employee who refuses to respond or provide proof of vaccination as unvaccinated.
- Provide paid time off for employees to get the COVID-19 vaccine and/or to recover from effects of the vaccine.
- Develop and implement a COVID-19 policy that requires employees be fully vaccinated against COVID-19 or, for unvaccinated employees, weekly testing. The policy must also state that unvaccinated employees must wear a mask in the workplace and while with other employees in a vehicle or when together for work-related purposes. The policy must also include protocols for screening non-employees entering the workplace.
- Enforce necessary quarantine periods for employees who test positive for COVID-19.
- Where testing will be used as an option, begin procuring tests and/or exploring local options for testing that may be used and begin implementing the testing option on or before February 9, 2022.
This is a complex mandate (wow, King of the understatements on this one!) with an exhaustive list of questions – many not yet thought of – and don’t forget about the intersections with state and local laws and regulations (how could we!). My team and I will continue to monitor the situation over the coming days and weeks and will keep you updated along the way. So, buckle up and get ready for bumpy sleigh ride!
On behalf of everyone at HR Compliance Experts (and me, Frank’s snarky alter ego), we wish you a safe and happy holiday season and a Happy New Year!
Posted by Frank Cania, president of HR Compliance Experts LLC.
© 2021 HR Compliance Experts LLC
Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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