May 25, 2022

Volume XII, Number 145

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May 24, 2022

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May 23, 2022

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OSHA ETS ‘Vaccine or Test’ Mandate for Private Employers (100 or more employees) Is Back in Play

In a 2–1 decision, the US Sixth Circuit Court of Appeals dissolved the stay that had prevented implementation of the OSHA Emergency Temporary Standard (ETS) requiring COVID-19 vaccination or testing. Within hours of that decision, numerous emergency appeals were filed with the US Supreme Court asking that the stay be put back in place pending Supreme Court review. Justice Kavanaugh set a deadline of 4 p.m. Dec. 30 for the Biden administration to respond to the appeals.

OSHA issued the following statement regarding the timeline of enforcement of the ETS:

“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 non-compliance 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.”

Unfortunately, there may be more hurry up and wait going on. It is still a good idea to have a policy ready to go and to begin the process of collecting the vaccination status of employees. If the stay is not reinstated, a summary of the obligations and their respective deadlines are set forth below. 

January 10, 2022

  • Employers must have an up-to-date log with all employees’ vaccination status.

  • Employers must have a vaccination/testing policy in place.

  • Employers must support vaccinations, including: pay up to four hours to travel to get vaccination and provide sick leave for a reasonable time (two days) to recover from vaccination side effects.

  • Employees must immediately provide any notice of a positive COVID-19 test or diagnosis, and they must be removed from the workplace.

  • Employees who are not fully vaccinated must wear face coverings when indoors or when occupying a vehicle with another person for work purposes.

  • Work-related COVID-19 fatalities must be reported to OSHA within eight hours and work-related COVID-19 inpatient hospitalizations within 24 hours.

  • Records must be available for OSHA inspection.

February 9, 2022

  • Testing requirement begins.

  • Employers must ensure that employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer).

  • Employers may require employees to pay for any costs associated with testing; however, state/local laws or regulations, collective bargaining agreements, or other agreements may require employer payment.

  • Employees with a disability or religious accommodation who are not vaccinated must test weekly. If testing conflicts with a worker’s sincerely held religious belief, practice, or observance, the worker may be entitled to a reasonable accommodation.

  • Over-the-counter tests from a local pharmacy may be used to satisfy the testing requirements. The test must be observed by the employer or an authorized telehealth doctor.

© 2022 Jones Walker LLPNational Law Review, Volume XI, Number 355
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About this Author

Jane H. Heidingsfelder, Jones Walker, MSHA Employer Representation Lawyer, Injury Reporting Policy Attorney
Partner

Jane Heidingsfelder is a partner in the firm's Labor & Employment Practice Group in the New Orleans office. She has extensive experience representing clients in a wide array of industries before the Occupational Safety & Health Administration ("OSHA") and Mine Safety & Health Administration ("MSHA"). In particular, she is frequently asked to assist companies during on-site safety and health investigations, as well as in subsequent litigation with the Department of Labor. 

Ms. Heidingsfelder has defended clients in state and federal...

504.582.8306
Sidney Lewis Labor Lawyer Jones Walker New Orleans
Partner

Sid Lewis is a partner and leader of the Labor & Employment Practice Group, where he consults and advises management and human resources personnel with respect to employment and labor laws.


Sid advises clients throughout the United States in all industries, including retail, hospitality, healthcare, manufacturing, and service industries. A majority of his work involves general advice to employers on a variety of employment situations, including discipline, terminations, applications, leave requests, transfers, noncompete agreements, trade secret information,...

504.582.8352
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