The OSHA Vaccine/Testing Emergency Temporary Standard (ETS) is now in effect following the decision by the 6th Circuit Court to lift the injunction blocking implementation on December 17. Following an immediate appeal of the decision by the 6th Circuit Court to reinstate the ETS, the Supreme Court has decided to take the case and will hear oral arguments regarding the ETS on January 7 with a decision likely to follow during the week of January 10. There is no way to predict what the Supreme Court will do regarding the ETS at this point. All six of the prior Covid vaccine mandate cases that were appealed to the Supreme Court have been decided by a single Justice without hearing oral arguments or issuing a written opinion, and all were decided in favor of the vaccine mandates. This case, however, is different from the prior cases as it is a potential nationwide requirement with broad implications. This is evident through the referral to the entire court by Justice Kavanaugh.
U.S. Compliance has created several resources to help ensure that our clients have the best opportunity to comply with the ETS as the OSHA deadlines are rapidly approaching. We recommend that our clients move forward with preparations and some action towards complying with the ETS to satisfy OSHA’s expectation of “good faith efforts” to avoid a citation while the legal process continues and with the knowledge that it will likely not be resolved prior to the first deadline of January 10.
This message regarding the ETS and the new deadlines for compliance was published on the Federal OSHA – Covid website following the decision by the 6th Circuit Court:
“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
Revised Federal OSHA Deadlines to Keep in Mind
- January 10 – All administrative aspects of the OSHA Vaccine/Testing ETS listed in steps 1-4 below
- February 9 – Initiate testing process for all remaining unvaccinated employees
5 Key Steps to Initial Compliance With the ETS
- Determine if the ETS applies to your company (100 employee threshold)
- Create a roster of employees that includes their vaccination status and gather the related documentation
- Develop related policies regarding mandating vaccination or testing/masking
- Provide training and information required by the ETS to your employees
- Plan to provide or have applicable employees provide a weekly negative Covid-19 test result if they are unvaccinated and document the results
Covid-19 ETS Resources
The following documents are available via your advisor or for your convenience and immediate access at the U.S. Compliance Covid Resource Center webpage to support compliance with the ETS:
- OSHA Vaccine/Testing ETS Compliance Checklist
- Vaccine Mandate Policy Template
- Testing/Masking Policy Template – for clients that are not implementing a vaccine mandate
- Vaccination Exemption Forms – for both medical and religious reasons for clients implementing a vaccine mandate (included in Infection Control & Prevention Appendix)
- Vaccination Affidavit Form – for employees that are vaccinated but cannot produce acceptable proof of vaccination
- Unvaccinated Employee Status Form – for employees to indicate that they are either not vaccinated and do not intend to be vaccinated, that they intend to be vaccinated and will be by a certain date, or that they do not wish to reveal their vaccination status
- Excel version of an Employee Vaccination Matrix – to fulfill the “roster” requirement
- ETS compliant testing resources are available through our partner PreScouter DX, including approved OTC home rapid antigen tests, PCR “pool” testing, and individual testing using saliva samples sent to their lab. If you would like to receive information on testing, please reach out to COVIDtesting@uscompliance.com.
We will continue to monitor for updates from the Supreme Court on the OSHA Vaccine/Testing ETS and the CMS Healthcare Vaccine Mandate. We are also monitoring the 11th Circuit Court for updates regarding the Federal Contractors vaccine mandate, as well as OSHA state program adoptions of the ETS, and updates to existing state OSHA program Covid-related standards.
For our clients in the healthcare industry, the OSHA Healthcare ETS was set to expire on December 21. The OSHA website has now been updated to reflect the expiration of the Healthcare ETS in part. The record-keeping aspects of the standard remain in effect and enforceable. The exemption from compliance with the new OSHA Vaccine/Testing ETS will no longer apply to qualifying healthcare employers with more than 100 employees. This is further complicated by the CMS Healthcare Vaccine Mandate that is currently in effect in 26 states pending a hearing before the Supreme Court, also currently scheduled for January 7. In those states where the mandate is in effect, the CMS Healthcare vaccine mandate will take precedence over the OSHA Vaccine/Testing ETS. In those states where the CMS Vaccine Mandate is blocked by the courts, the OSHA Vaccine/Testing ETS will apply to applicable healthcare employers with more than 100 employees pending action by the Supreme Court.
Please let your advisor know if you have any questions. Our Covid Response Team is also available to assist if needed.