Last week, the U.S. Supreme Court agreed to an expedited review of legal challenges to the Occupational Safety and Health Administration’s emergency temporary standard (ETS) requiring employers with 100 or more employees to require vaccinations for COVID-19, or in the alternative, to mandate weekly testing and mask wearing. A panel of the Sixth Circuit Court of Appeals upheld the rules, finding them within OSHA’s statutory authority.
The first portion of the OSHA rule is scheduled to take effect on January 10. In a rare move, the Supreme Court scheduled oral arguments on the request for a judicial stay for January 7. While this probably does not leave the court sufficient time to issue a decision before January 10, it may signal an intent by a majority of justices to provide clarity to OSHA and employers before the testing mandate takes effect on February 9.
All of this means that employers should prepare for compliance with the January 10 effective date. Employers should:
1. Survey employees for vaccination status, obtain records of vaccinations, and prepare a roster of employee vaccination status.
2. Prepare to distribute their own written policy by January 10 (more on that below).
3. Prepare and distribute educational materials required by OSHA.
4. Provide up to four hours of paid time for employees to obtain vaccinations (boosters are not covered).
5. Require employees to provide immediate notice of a positive COVID-19 test and remove them from the workplace.
Although the ETS does not require training, employers should think about how to effectively communicate the new policy to employees. The policy must advise employees whether the employer will mandate COVID-19 vaccinations or allow testing and masking as an alternative. If the employer elects testing, it should advise employees who will bear the cost of the tests.
If the testing rules go into effect February 9, employers should begin preparing to comply with the weekly testing requirements. With the Omicron surge picking up steam, many employers will have difficulty locating a reliable source of testing. OSHA has said that it will take these testing shortage issues into account when deciding on enforcement action.
States with their own OSHA enforcement programs such as North Carolina and South Carolina could choose to delay these effective dates by a few weeks. As of now, neither state has posted any decision on this issue.