Private employer vaccine mandate revived by 6th U.S. Circuit Court
- The 6th U.S. Circuit Court of Appeals in Cincinnati lifted a November injunction that had blocked the enforcement of the COVID-19 Vaccine and Testing Emergency Temporary Standard from the Occupational Safety and Health Administration (OSHA), which applies to businesses with at least 100 workers.
- Within hours of the ruling, at least three petitions were filed with the U.S. Supreme Court, asking it to immediately block the mandate.
- The rule requires companies to determine who among their workers are vaccinated and who are not, and to enforce a mask mandate for unvaccinated workers. The new deadline for those steps is Jan. 10th.
- The Labor Department announced that OSHA would not issue citations for noncompliance with the testing requirement before Feb. 9th, “so long as an employer is exercising reasonable, good faith efforts to come into compliance” with the rule.
What Should Employers Be Doing?
Fisher Phillips, a highly respected and reputable law firm, recommends the following in order to prepare for the January 10th and February 9th requirements:
- Determine if you are covered by the ETS. Work with your workplace safety counsel to answer the following questions: Is your workplace covered by OSHA normally? If so, do you have more than 100 employees nationwide? Or, are you exempt because you are covered by either the Healthcare COVID-19 ETS or Federal Contractor mandate? (More on this below).
- If you are covered, gather vaccine status information on your workforce and develop the required vaccination roster for employees, noting whether or not they are fully vaccinated as defined under the ETS. This information (the percentage of vaccinated workers) will allow you to determine if you will mandate vaccines or conduct testing under the ETS.
- Depending on your decision, develop the required mandatory vaccine and/or testing/masking policies required under the ETS – and make sure they are adapted to your own unique workplace. While you don’t necessarily need to implement these policies before January 10th, you should be ready to implement them as soon as possible and be prepared to demonstrate good faith efforts to put them into place. Of course, if your organization has low risk tolerance, you could proceed with implementing the policies before January 10th.
- Develop programs that would allow you to conduct compliance training for your managers and deliver information about your policies to your employees as required under the ETS. You may want to conduct this training and start your informational campaign before the January 10th deadline to further demonstrate your good faith efforts.
- If you decide to provide the COVID-19 testing option, then in addition to implementing the above requirements by January 10, you should be prepared to have unvaccinated employees demonstrate proof of a negative test as of February 9th.
We will continue monitoring any developments and provide further information, as needed.