When it comes to COVID-19, things change quickly, and it can be difficult to predict what will happen next. I reported last week here that all of the federal vaccine mandates were in disarray and on hold based on legal challenges. That changed on Friday, when the injunction issued by a federal district court against the large employer (100+ employees) mandate was lifted on appeal. With the injunction no longer preventing enforcement of the OSHA Emergency Testing Standard (ETS), Federal OSHA has issued new guidance requiring employers to take immediate steps to implement the rule. Meanwhile, the issue is heading to the U.S. Supreme Court. So, what’s a large employer to do?
As I reported here in my FAQ from back in early November, the mandate requires employers to either:
• Establish a mandatory vaccination policy for their workforce; or
• Establish an opt-out policy that allows the company’s employees (or certain work units within the company) to submit to weekly COVID-19 testing in lieu of vaccination.
Let’s talk first about the elephant in the room. Do employers really need to worry about this if the U.S. Supreme Court has not weighed in yet? The court of appeals decision is presently under review by Justice Brett Kavanaugh, who will likely refer the matter to the full Court for review. It’s unclear at this time how long the U.S. Supreme Court will take to consider briefing and oral argument on the OSHA rule and make a decision, so employers are in limbo for the indefinite future.
However, Federal OSHA has weighed in and made it clear that employers subject to the rule need to take prompt action to implement policies that are compliant with the ETS. You can read OSHA’s statement on the current status of enforcement here. OSHA will not issue citations for noncompliance with any portion of the ETS (including policy implementation etc.) prior to January 10 and will not issue citations for noncompliance with the testing requirements imposed by the ETS before February 9. However, OSHA’s promise not to issue citations depends on employers “exercising reasonable, good faith efforts to come into compliance with the standard.” In other words, in those states subject to the jurisdiction of Federal OSHA, employers can be cited now for failure to make good faith strides towards compliance with the rule.
Keep in mind that Oregon is an OSHA “State Plan” state and therefore is not bound by the Federal OSHA regulations. Rather, it is required to adopt local regulations that are at least as protective of workers as the Federal OSHA ETS. Since the injunction was first issued, Oregon has taken a “wait and see” approach to implementing and enforcing its own version of the ETS, but that approach is likely to change given that the injunction has been lifted and Federal OSHA is now moving forward.
With all that in mind, Oregon employers should at least start familiarizing themselves with the ETS and be ready to update policies and procedures once we have more details. Information about the ETS can be found in my article here and on OSHA’s website (here), which includes links to various fact sheets and policy templates.
Randall Sutton is a partner in the Employment Law & Litigation practice group. Randy is also a member of the Health and Wine & Vine industry groups. The information in this article is not intended to provide legal advice. For professional consultation, please contact Randy at firstname.lastname@example.org at Saalfeld Griggs PC. 503.399.1070.
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