Monday, December 20, 2021

Coronavirus Update 12-20-21: OSHA’s “vax or test" mandate is back on … for now

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

That's what OSHA posted on the heels of the 6th Circuit's decision dissolving the 5th Circuit's stay of the agency's "vax or test" emergency temporary standard. 

What does this all mean for employers with 100 or more employees? 

First, pay attention to those dates. Jan. 10 to comply with everything but the testing requirement, and Feb. 9 before OSHA will cite anyone for noncompliance with testing as long as they've exercised "reasonable, good faith efforts" to comply. In other words, if you didn't listen to my earlier urgings and stopped taking steps to comply once the 5th Circuit issued its stay, you are going to have a very busy holiday season getting ready for Jan. 10. 

You need your ETS-compliant policy by then. 

You need to collect vaccination data by then. 

You need to require masks for the unvaccinated by then. 

In other words, you have a lot of work to do. 

There is a wildcard, however. An appeal from the 6th Circuit's decision has already been filed with the Supreme Court. Will SCOTUS allow the mandate to move forward while we wait for a decision on the merits, or will it reinstitute the stay? No one knows, but we should before Jan. 10. In other words, this could all change on a dime depending on what SCOTUS says.

Until then, however, as the Boy Scouts famously say, "Be prepared." Get those policies and other compliance efforts ready. Jan. 10 will be here before you know it.