OSHA Emergency Temporary Standard Covid-19 Mandatory Vaccination (Updated/Revised)

This is updating the November 17, 2021 Question & Answer that was provided on November 17, 2021 regarding the OSHA ETS Mandatory Vaccination guideline (“OSHA ETS”).

Q: What is the current status of the OSHA ETS?

A: [UPDATE] On January 13, 2022, this was stayed by the U.S. Supreme Court in National Federation of Independent Business v. Dep’t of Labor, OSHA, Case Nos. 21A244, 21A247, 595 U.S. __ (2022).

Q: What are the chances of another stay of the OSHA ETS?

A: For now, the OSHA ETS is in effect. Even though the Sixth Circuit denied an initial hearing of the matter en banc (meaning before the full panel of judges, rather than a three-person panel), it is possible the Sixth Circuit would now grant a full review of the issue en banc since the three-person panel has issued its decision. En banc review is considered an extraordinary procedure, however, and must be requested 14 days after the entry of judgment. It is also possible that the U.S. Supreme Court could accept review of the issue.

Q: Should I wait and see how this plays out in the court system?

A: No. We would not recommend that approach. It is recommended that you proactively take steps to comply with the Agency’s current schedule.

Q: Is my workplace covered by OSHA ETS?

A: All private Employers with 100+ employees must comply with the ETS, except in limited circumstances. Those exceptions include: (1) employers covered by Executive Order 14042 (federal contractor vaccine mandate), and (2) healthcare employers covered by the Healthcare ETS are not covered by this ETS.

Q: What does the OSHA ETS require that we do as of January 10, 2022?

A: Covered Employers have until January 10, 2022 to develop compliant policies. The Employer policy must address minimum vaccination, vaccination verification, face covering, and testing requirements to address COVID-19 in the workplace. A mandatory vaccination policy is not required if the Employer has a written policy permitting each employee to choose between vaccination or providing proof of regular testing and wearing a face covering.

Q: What is required by the OSHA ETS to be done by February 9, 2022?

A: Covered Employers have until February 9, 2022 to develop testing requirements, provided they have developed compliant policies and are taking steps to comply with the OSHA ETS.

Q: Is the Employer required to pay for the costs of testing?

A: No. Under the OSHA ETS, the Employer is not required to pay for any costs associated with testing. An Employer may be required to pay for testing if required by another law, or by a collective bargaining agreement.

Q: What are the consequences for non-compliance?

A: Covered Employers could face up to $13,653 per violation, along with additional citations or penalties as determined by OSHA or DOSH.

Q: Do I need to bargain over this issue with the Union, even though it is a federal requirement?

A: Probably. It will depend in part on your collective bargaining agreement. The NLRB has issued a memo concerning COVID vaccine mandates (including OSHA ETS). Memorandum OM 22-03. The NLRB has emphasized that Employers often do have bargaining obligations with the Union over issues related to terms and conditions of employment (including vaccine mandates), where the Employer has some degree of discretion in implementing those policies.

Q: Can I comment on the OSHA ETS?

A: Yes. OSHA has extended its comment period. The OSHA ETS is being proposed as a permanent standard. OSHA’s notice and comment period is part of that rulemaking process. If your business or association would like to comment on the OSHA ETS, all written comments must be submitted by January 19, 2022 in Docket Number OSHA-2021-0007 to www.regulations.gov.

Q: I have additional questions that are not addressed in this Q&A or the prior one?

A: The OSHA ETS is a large piece of regulation that cannot be condensed to a few pages. If you have any additional questions, you can review OSHA’s FAQ on their website (https://www.osha.gov/coronavir...), or you can contact our attorneys directly.

Keep in mind these regulations are subject to constant change.

For additional information concerning this topic or any other labor and employment issue, please contact any of our attorneys directly at (206) 447-0182 or info@davisgrimmpayne.com.

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