November 9, 2021

On Saturday, November 6, 2021, the fifth Circuit of Appeals ordered a temporary stay on the Occupational Safety and Health Administration’s (OSHA) COVID-19 Emergency Temporary Standard (ETS) on mandatory COVID-19 vaccination and testing for the workplace. The order effectively prevents enforcement of this ETS until a final decision regarding the legality of this standard is published.

Temporary Stay

The stay was ordered in one of multiple lawsuits challenging the validity of OSHA’s COVID-19 ETS. These lawsuits request a permanent injunction against the ETS. The Court justified the order because it found “cause to believe there are grave statutory and constitutional issues” with the OSHA vaccination mandate.

The Court has ordered OSHA to respond to the request for permanent injunction by 5 p.m. on Monday, Nov. 8, 2021. Parties petitioning the injunction will have until 5 p.m. on Tuesday, 2021, to reply.

Impact on Employers

While the temporary stay effectively prevents enforcement of the ETS until a final decision on the legality of the standard is published, the law has not been permanently delayed or vacated officially. Therefore, the future of the ETS remains uncertain due to these pending legal challenges. While the final result is unknown, it will take weeks of planning for employers to comply with the ETS’s deadlines. Accordingly, employers may want to continue in their efforts to understand and prepare for compliance with the ETS as if it is going to take effect while litigation continues. Affected employers should also monitor development of this legal challenge to learn more about the viability of, and their compliance obligations with, the ETS.

Stay tuned as this issue continues to rapidly develop and we will keep you updated on any new developments. For a copy of this news brief, click here: Federal Court Blocks OSHA COVID-19 Vaccination and Testing ETS .

Reach out to Mike Young today for more content on this ETS mandate and the workplace and to discuss how further updates can affect your business at 714.716.4060 or mike@my-ebp.com .

OSHA Releases Vaccination and Testing ETS

November 5, 2021

On No. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address the grave danger of COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS by Dec. 5, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firm- or company-wide count). State plans will have 30 days to adopt the federal ETS or implement their own vaccination standard.

ETS Requirements

The ETS requires employers to:

Develop, implement and enforce a mandatory COVID-19 vaccination policy; or
Create a policy allowing employees to choose to get a vaccination or wear a face covering in the workplace and have weekly COVID-19 testing done.

Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination and keep a roster of each employee’s vaccination status.

Weekly Testing Requirements

Employees who are not fully vaccinated must be tested weekly or within seven days before returning to work. The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulation, collective bargaining agreements or other collectively negotiated agreements.

Paid Leave

Employers are also required to allow reasonable time – including up to four hours of paid time – to received a primary vaccination dose. Reasonable time and paid sick leave are also required to recover from any side effects of the vaccination. Employees are required to provide immediate notice of a positive COVID-19 test or diagnosis, and will be removed immediately from work until return to work criteria are met.

ETS Exemptions

The requirements of the ETS do not apply to:

Employees who do not work with other individuals present;
Employees when they are working from home;
Employees who work exclusively outdoors;
Those covered under the Safer Federal Workforce Task Force;
Those covered by the healthcare ETS;
Employers that have fewer than 100 employees; and
Public employers in states without State plans

Conclusion

Employers should carefully review the vaccination and testing ETS, implement and start enforcing the requirements. Employers should also continue to monitor OSHA communications so they can be updated on any changes and amendments to the ETS. OSHA recently issued a sample policy template that can be used by an employer that will be mandating vaccination per the ETS above. Note: This document is a template and requires customization. Click here for a copy: Mandatory Vaccination Policy Template .

Stay tuned as this issue continues to rapidly develop and we will keep you updated on any new developments. For a copy of this news brief, click here: OSHA Releases Vaccination and Testing ETS .

Also, click here to get a copy of a more detailed news brief including important frequently asked questions: COVID-19 Vaccination and Testing ETS with Frequently Asked Questions .

Reach out to Mike Young today for more content on this ETS mandate and the workplace and to discuss how further updates can affect your business at 714.716.4060 or mike@my-EBP.com .