Court lifts hold on OSHA vaccine policy; testing compliance pushed to Feb. 9

Following a U.S. Court of Appeals for the Sixth Circuit decision Friday to lift a stay on the emergency temporary standard (ETS) the Occupational Safety and Health Administration (OSHA) issued in November, the agency updated its guidance and set new compliance deadlines.

The ETS will give employers until Jan. 10, 2022, to implement a vaccine policy for their company and until Feb. 9, 2022, to comply with testing requirements for unvaccinated employees.

“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,” the update said.

The ETS had originally ordered all businesses with 100 or more employees to develop a COVID-19 vaccine policy by Jan. 4. The policy does not mandate all employees receive COVID-19 vaccines, but rather that companies determine for themselves how to best minimize the risk of their employees contracting the virus in their workplaces.

Large companies can choose to implement a mandate to comply with the ETS, or they can use an option to order unvaccinated employees to wear masks at work and be tested weekly for COVID-19. Employers must confirm their employees’ vaccination status and keep those records separate from traditional employment records.

Business groups appealed the ETS, and on Nov. 12, the 5th U.S. Circuit Court of Appeals in New Orleans placed the ETS on hold, calling it “staggeringly overbroad.”

On Friday, the 6th Circuit dissolved the 5th Circuit’s stay, saying, “OSHA has demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.”

The 6th Circuit court also said in its order, “OSHA has regulated workplace health and safety on a national scale since 1970, including controlling the spread of disease. … [V]accination and medical examinations are both tools that OSHA historically employed to contain illness in the workplace. The ETS is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”

The issue is far from settled, as noted in a blog post Saturday from employment firm Littler Mendelson. A coalition of 26 trade groups quickly appealed the ruling to the Supreme Court, requesting an immediate stay of the order’s effective date.

Employment attorneys advise continuing to develop policies and procedures to comply with the ETS while the issue moves its way through the courts.

“Employers may continue to develop COVID-19 programs to comply with the ‘vax or test’ mandate, including collecting employees’ vaccination status, drafting an ETS policy, putting together a testing protocol, and training employees on relevant processes and policies,” the Littler authors wrote.

Frederick “Gus” Sandstrom, partner with employment firm Blank Rome, said affected businesses are likely to respond to the latest news in two ways. One set of businesses is already far along the path of mandating vaccines for employees, having already created a policy which sets deadlines and targets for employees to be vaccinated or face possible disciplinary action—up to and including termination.

Another set of businesses, however, might operate in regions with high vaccine skepticism or is simply worried enforcing a vaccine mandate will lead to workers quitting at a time when filling job postings is difficult.

“Their view is that I can’t put this policy into effect unless I can point to OSHA and say, ‘They’re making us do this,’” Sandstrom said.

Even as employers with vaccine skeptics in their workforce play the waiting game, Sandstrom said, they should consider taking these three steps in the interim.

First, ask employees for their vaccination status and keep those records separate from typical employment records. Although it might be tempting to hound employees to provide their status, it’s not critical at this moment. If an employee does not respond, a company can simply treat that employee as unvaccinated—and make sure he or she follow all its health and safety protocols for unvaccinated employees. Sometimes just enforcing company policy on unvaccinated employees can prompt a response or even a vaccination.

Second, begin the internal process of developing a vaccine policy that complies with OSHA’s ETS. OSHA provides several templates, Sandstrom said. This is another step that won’t alienate workers but will provide proof to regulators, upon request, that a company is working toward compliance with the ETS.

Third, inform and educate your workforce about what the ETS requires.

A company can frame its message to its workforce however it pleases. It could say, “We plan to implement OSHA’s vaccine policy no matter what the courts decide” or, “We don’t agree with this mandate, but here’s what might be required.”

“It’s not going to be that hard for an employer waiting on the final word to push things out to Feb. 9 without really doing a lot that risks disharmony in their workforce,” Sandstrom said.