Thursday, October 14, 2021

Coronavirus Update 10-14-2021: We still don’t know what OSHA’s vaccine standard says … but we’re getting closer

Late Tuesday, news broke that OSHA had submitted in vaccine mandate Emergency Temporary Standard to the White House’s Office of Information and Regulatory Affairs for its review. What does this mean? It means that OSHA has taken the first important step towards publishing the ETS and implementing its vaccine mandate for employers with 100 or more employees.

But that's it.

What does the ETS say? We have no idea. No one outside of OSHA or the White House has seen it yet, and there's been zero reporting on what it contains outside of President Biden's September 8 announcement. For the sake of employers (and my) sanity, I hope that the ETS addresses the following:
  • How is the 100-employees limit calculated?
  • If an employee tests in lieu, who pays for the tests?
  • Are employees paid for time spent getting vaccinated and testing?
  • Are remote workers excluded?
  • Are exceptions provided for disabilities and religion?
  • How will employers track vaccines and tests?
  • How will OSHA enforce this mandate?
  • How does the ETS impact states with state OSHA plans?

When will OSHA publish the ETS? We also have no idea. It could take weeks, or even months. Although, for what it’s worth, NBC News reports that we could see it as early as next week. 

When will the ETS actually take effect? We also have no idea. One would presume that even after its eventual publication, OSHA will provide employers some amount of runway before they have to comply. It would not be feasible or realistic for OSHA to expect employers to comply the same day as publication. Employers will need some amount of time to prepare and implement a vaccine mandate policy consistent with whatever the ETS ultimately says. Additionally, at least two dozen state attorneys general have are already on record as saying they will file a lawsuit to block the ETS from taking effect. Thus, even once it publishes, I have real doubts that it will go into effect.

What should employers be doing to prepare? We also have no idea. That's not actually true. In response to this question, I can offer some insight. Stay the course. We don't know what the ETS will actually say. Thus, an employer can't prepare. In the meantime, however, if you're considering a vaccine mandate keep considering. If you're not, keep encouraging as many employees as possible to get vaccinated. And assume that at some point, if your business has 100 or more employees, you may have to mandate per OSHA unless a court steps in and says otherwise.