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States May Have Different Deadlines for OSHA's Mandatory Vaccinate-or-Test Rule

    Client Alerts
  • January 06, 2022

Each state is governed either directly by the federal Occupational Safety and Health Administration or develops and implement its own state plan for workplace safety that is required to be at least as effective as federal standards. This applies to rules like hard-hat requirements, training standards, and even OSHA’s mandatory vaccinate-or-test-and-mask emergency temporary standard (ETS) announced on November 4, 2021. After a series of lawsuits and appeals, the U.S. Supreme Court is set to hear oral arguments on the ETS on January 7.

Because a business could operate across multiple states, some of which are state-plan states, there are multiple deadlines employers need to keep in mind. Businesses in federal OSHA states must comply with the following requirements by January 10:

  • Establish a mandatory vaccination policy that, among other things, ensures employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person and submit to weekly COVID-19 testing.
  • Provide employees with relevant information about the ETS, vaccination safety and efficacy, and protections against retaliation.
  • Determine the vaccination status of each employee.
  • Provide paid leave for employees to get vaccinated.
  • Establish a reporting and recordkeeping policy for COVID-19 related records.
  • The effective date for vaccines and weekly testing of employees is February 9, 2022.

In state plan states, adoption of the ETS – or a rule that is at least as effective as it – must be completed within 30 days of the promulgation date of the final federal rule. Additionally, state plans must notify federal OSHA of the action they will take within 15 days of the promulgation date. Because January 10, 2022, is the federal deadline, state plans will have until January 24, 2022, to either adopt the ETS or demonstrate that their standards are at least as effective as the ETS.

North Carolina Labor Commissioner Josh Dobson has previously expressed hesitancy and skepticism with the ETS’ implementation in North Carolina (a state plan state). Since the appeal to the Supreme Court, the NCDOL website now notes that the NCDOL “will review this new rule and determine the appropriate actions to take in North Carolina. The NCDOL website will be updated when any decisions are made.”

Under the previous federal OSHA ETS for health care employers, NCDOL waited until the deadline to announce that it was implementing the federal rule. The state agency may pursue the same approach here, waiting until January 24 before advising North Carolina employers that the rule is in effect. In the meantime, the Supreme Court may have reached a decision on the legality of the rule. At a minimum, this delay may give North Carolina employers additional time to comply with the initial parts of the ETS.