On September 9, 2021, President Biden directed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) requiring that all private employers with 100 or more employees mandate their workforce be vaccinated or submit to weekly COVID-19 testing. OSHA published the ETS on November 5, 2021. However, several employers filed lawsuits challenging OSHA’s authority to enact the ETS. A nationwide injunction was entered on November 6, 2021, temporarily halting enforcement of the ETS pending judicial review.
In what some are calling a surprising turn of events, on December 17, 2021, a three-member panel of judges in the Sixth Circuit Court of Appeals overturned the nationwide injunction. Absent intervention by a full panel of Sixth Circuit judges or the U.S. Supreme Court, a path has been cleared for OSHA to begin enforcement of the ETS.
As a reminder, the ETS requires employers to do the following:
- Establish written policies related to vaccines, testing, face coverings, and other OSHA requirements;
- Determine and document the vaccination status of each employee and obtain proof of vaccination;
- Provide employees with paid time off to obtain the vaccine and reasonable paid time off to recover from vaccine-related side effects;
- Require employees to provide employers notice of a positive COVID-19 test result;
- Report to OSHA work-related COVID-19 fatalities and in-patient hospitalizations; and
- Provide resources to employees outlining the requirements under the ETS and information about the vaccine.
Your deadline to comply will depend on the state(s) where you operate but could be as early as January 10, 2022.
There are still many unanswered questions about the ETS, including how enforcement will be handled in states that have enacted a vaccine mandate ban. The ETS provides that it supersedes any conflicting state or local law, but we expect more litigation on this issue.
AlphaStaff remains committed to providing you with expert advice to navigate this uncertain time. Additionally, our efforts are well underway to identify third-party service providers that can assist you with complying with the federal ETS, state vaccine mandates, or your own mandatory vaccination policy. More information will be forthcoming.
Please contact your HR Account Manager if you have any questions.