The Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) requiring vaccination and testing mandates for employers with at least 100 employees is currently paused following a Fifth Circuit decision that put in place a stay on all activities related to implementation and enforcement.
While the ETS fate is uncertain, employers should remain aware of the legal status of the rule and prepare for quick enforcement if the ETS comes out of the federal appellate court process intact. The ETS was set to take full effect over the next few months with these key deadlines:
· December 5, 2021: Employers must comply with all requirements other than testing employees who have not completed their vaccination dose. This includes employer policy rollout, recordkeeping, and mask-wearing requirements.
· January 4, 2022: Employers must comply with the testing requirement for employees who have not received all doses required for vaccination.
Employers are not legally obligated to comply while the ETS is on hold but given the potential penalties of up to $14,000 per violation, they should use this time wisely to decide and develop a plan of action. Below are some key requirements for covered employers:
· Mandatory COVID-19 Vaccination Policy. OSHA has posted a mandatory vaccination sample policy on its website for consideration. Employers with vaccine mandate policies already in place must modify their current policy to incorporate any missing requirements.
· Vaccination Status Proof and Recordkeeping. Employers must determine the vaccination status of each employee.
· COVID-19 Testing. Employers must ensure that employees who are not fully vaccinated are tested for COVID-19 at least weekly. OSHA has also posted a testing and face covering sample policy on its website for consideration.
Should you have any questions concerning the development of a vaccination or testing policy, please do not hesitate to contact our team of professionals.