In a Friday night surprise for all business owners with at least 100 employees, the federal courts dissolved the stay on the OSHA Emergency Temporary Standard, meaning that the rule requiring that employees either vaccinate or test weekly is now back in place. For now. As always, stay tuned, because there will almost certainly be more twists to this story. President Biden will deliver a speech on Tuesday addressing the Omicron variant and announcing new steps to help communities in need of assistance.
For more details on the OSHA ETS requirements, see our previous Alert on this topic.
Under the ETS employees are required to have completed the vaccine course by January 4 (or be fully vaccinated by January 18, which is 2 weeks post final shot). OSHA has indicated that it will not issue citations until January 10, and that it will not issue citations for noncompliance with testing before February 9, so long as you can demonstrate good faith efforts to come into compliance. In other words—you do have a little breathing room, but take care to show your work in terms of efforts to comply.
Remember, this is not a real mandate. Employees can choose to test weekly instead of getting vaccinated. Questions regarding who pays for the testing, and for the time spent testing, continue to remain unresolved. Please contact your favorite employment lawyer if you want to talk through these issues!
Another lingering question—what to do about boosters. As of now, they do not appear to be required under the OSHA ETS. But as is true with all things COVID, stay tuned.
Last—one requirement of the OSHA ETS is a written policy. If you need help drafting a policy that fits your workplace and is in compliance with the OSHA ETS, please reach out.
Meredith S. Campbell
Chair Employment and Labor Group
Chair Corporate Investigations, Governance & Risk Management
Email [email protected] T(301)255-0550