OSHA’s COVID-19 Vaccine-Testing Mandate Back in Effect

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OSHA’s COVID-19 Vaccine-Testing Mandate Back in Effect

On December 17, the Sixth Circuit Court of Appeals lifted the nationwide stay on the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) that had been imposed by the Fifth Circuit, requiring the ETS’s employer vaccination and testing requirements for COVID-19 go back into effect for employers with 100 or more employees.  Following the Court’s decision, OSHA announced a January 10, 2022, effective date for all ETS requirements have in place a vaccination or testing policy and February 9, 2022, for active employer workplace testing requirements.  OSHA said, “we will not cite employers for noncompliance with testing requirements prior to February 9, 2022.”

Employers should review their COVID-19 protocols to make sure they are compliant in both their testing and documenting efforts and consider their options in keeping their employees’ vaccination and test information confidential.  Employers covered by the ETS must still provide reasonable accommodations based on sincerely held religious beliefs or qualifying medical conditions.  It is a good time for employers to decide whether to require vaccinations for all employees or allow testing as an alternative.

The Sixth Circuit Court’s decision adds another twist in the litigation challenging President Biden’s Federal vaccine mandates.  While multiple emergency applications to the U.S. Supreme Court immediately followed the December 17th decision to reimpose the stay, there has been no stay entered as of this writing.  Justice Brett Kavanaugh has been assigned to review and decide whether to (1) grant the emergency stay applications, pending review by the Full Supreme Court, (2) make a referral to the full court for an emergency decision, or (3) take no action pending review.

OSHA may make amendments to the ETS vaccine and testing mandate before the Supreme Court makes a ruling, however, we expect the Supreme Court to rule quickly on the emergency applications.  So, employers can expect updates in the coming weeks.  Until then, the ETS is effective.

Here at Epps & Coulson, LLP we understand that these back and forth on and off again vaccine and testing mandates may be confusing.  We are available to advise – Contact Dawn:  dcoulson@eppscoulson.com to discuss your policy that OSHA requires.

Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  It is considered advertising under laws of some states.  Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.

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