Ready for OSHA’s January 10 Vaccinate-or-Test Deadline?

by Prof. Robert Bloink and Prof. William H. Byrnes

Late in December, as the COVID-19 pandemic continues to rage on across the U.S., the Sixth Circuit ruled to dissolve an existing stay of OSHA's emergency temporary standard (ETS) for employers with at least 100 employees. In response, OSHA announced that it would not begin enforcing its ETC until January 10, 2022--giving employers extra time to comply. While that’s by no means the end of the story, employers should start preparing now to comply with the OSHA vaccinate-or-test mandate—or face potentially harsh penalties in just a few short months.

What’s in the OSHA ETS?

Historically, OSHA has had the authority to take steps to protect workers from dangers in the workplace. For example, OSHA took steps to protect workers from asbestos-related threats and to prevent the spread of hepatitis and HIV.

The OSHA ETS does not technically mandate vaccines. Under the ETS, employees have two options: (1) choose to receive the COVID-19 vaccine or (2) wear protective face coverings in the workplace and submit to weekly testing.

The ETS only applies to employers with at least 100 employees. When counting employees, employers must include employees across all locations, regardless of where the employee performs his or her work (part-time employees count toward the 100-employee threshold, although independent contractors are not counted). It’s also possible that related entities could be treated as a single entity for testing purposes.

As noted, OSHA has already announced an enforcement stay on the vaccinate-or-test mandate until January 10 (the original deadline for compliance was January 4) in the 29 states where federal OSHA governs (in states where a state-level OSHA governs, employers will have until January 24). Further, OSHA will not begin issuing citations for failure to comply with the testing requirements until February 9, 2022 if the employer is making a reasonable, good-faith effort to comply with the mandate.

What Should Employers Do Now?

While the U.S. Supreme Court is expected to rule on the validity of the ETS in the coming weeks, employers should be prepared. That means employers should take steps to determine their employees' vaccination status and require weekly testing for unvaccinated employees by February 9. Employers should also require unvaccinated employees to wear face coverings unless they work alone, outdoors, or from home.

Employers with at least 100 employees should also adopt a written policy that complies with the terms of the ETS as soon as possible. Employees should be notified that they’re required to notify their employer if they receive a positive COVID-19 test. Employees who test positive for COVID-19 must be immediately prohibited from reentering the workplace until they’ve been cleared to return to work.

Employers should also be ready to offer employees paid time off in order to receive each vaccination dose (and to recover from any side effects). The ETS does not require employers to cover the cost of weekly testing for employees who choose to remain unvaccinated. However, state or local requirements may require the employer to cover those costs.

Employers must provide employees notice about the ETS requirements and the policies that they’ve implemented to enforce the ETS. Employees must also receive notice covering the CDC “Key Things to Know About COVID-19 Vaccines” and information about prohibitions on retaliation and discrimination. Employees must be notified that supplying any type of false statement or document related to vaccination status or testing results is a criminal offense.

The employer is required to provide documentation about an employee’s vaccination status and test results on request to that employee and others who the employee has authorized to access those documents. The employer must also provide information about COVID-10 hospitalizations and fatalities to OSHA.

The ETS preempts state and local laws if the state is one of the 29 federal-OSHA states—meaning that employers with at least 100 employees must comply even if a state-level law prohibits mask mandates or workplace vaccination. Employers who ignore the ETS could face penalties of up to $13,653 per violation (and additional penalties for willful noncompliance or egregious failures to comply).

Conclusion

The ETS can remain in effect for only six months. After that, it’s expected that OSHA will develop a permanent standard via the usual formal rulemaking process. Until the Supreme Court weighs in early in 2022, employers should be prepared to comply by the January 10 deadline.