COVID-19 Update: OSHA’s Federal Vaccine Mandate is Back In Effect

COVID-19 Update: OSHA’s Federal Vaccine Mandate is Back In Effect

Early in November, OSHA issued an Emergency Temporary Standard (ETS) that mandated vaccination policies for employers of 100 or more employees. Shortly after, the Fifth Circuit Court issued a stay on that ETS. On Friday, December 17th, 2021, the Sixth Circuit Court filed an emergency motion to dissolve this stay.

OSHA’s ETS is extensive. It requires employers to verify employee vaccination status using official documentation, provide paid time off for employees to receive vaccinations and recover from side effects, provide weekly COVID-19 testing for those exempted from the vaccine mandate, and create policies and guidelines related to these safety measures.

Employers generally felt a sense of relief when the federal ETS was paused. Now, that relief is dissolving just like the Fifth Circuit Court stay. Several emergency petitions have been filed with the Supreme Court of the United States, but unless the Supreme Court issues a stay of its own, enforcement of the OSHA ETS will proceed early next year.

What should employers do now?

OSHA has written that they plan to exercise “enforcement discretion with respect to the compliance dates of the ETS.” They continue, “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.” (emphasis added)

This means that covered employers with 100+ employees should begin to develop, implement, and enforce their mandatory vaccination policies and start tracking the vaccination status of employees by obtaining appropriate official documentation. Employers must also provide CDC information about vaccines, protection against retaliation, and the criminal penalties associated with knowingly providing false information. These actions are required by January 10. Employers should also determine the extent to which they will implement weekly COVID-19 testing. These measures are required by February 9.

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On a somewhat-related topic, we know there have been questions about the enforcement of California’s latest state-wide mask mandate for indoor spaces through January 15, 2022. Some local authorities have publicly stated they will not enforce the CDPH requirement, but Cal/OSHA is taking a strict approach. In their posted FAQs, Cal/OSHA states that its emergency temporary standard “requires that employers provide face coverings and ensure they are worn by employees when required by orders of the California Department of Public Health (CDPH). The December 13, 2021 CDPH guidance is such an order.” This means that Cal/OSHA may issue citations for companies who do not comply with the mask mandate, even if City or County officials do not.

As always, Sierra HR Partners is here to help you navigate the ever-changing landscape of COVID-19 precautions. Stay tuned for more information, and contact one of our Consultants with any questions you have.