As Legal Battle Continues, OSHA To Begin Enforcing Vaccine Standard
Legal challenges to the Occupational Safety and Health Administration’s (OSHA) COVID-19 Emergency Temporary Standard (ETS) for businesses with 100 or more employees continue to move forward — but so does OSHA.
As a reminder, the ETS requires employers with 100 or more employees to set up a system to ensure their entire workforce is fully vaccinated or, in lieu of vaccination, is tested for COVID-19 at least weekly.
As Connecting the Dots reported two weeks ago, OSHA has said that, to provide employers with sufficient time to come into compliance, it will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022 “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
OSHA has provided employers with resources that explain what they need to do in order to come into compliance. Click here to find them.
The Supreme Court will consider the case challenging the ETS before the OSHA compliance dates, however. Justices will hear oral arguments on January 7, 2022, but it is unclear when they will issue a ruling. They also have deferred on ruling whether to block implementation of the ETS until after the January 7 hearing. That means that, per a lower court ruling, the vaccine-or-test mandate remains in effect for now.
The central question the Supreme Court will consider is whether Congress gave the executive branch broad authority to impose such a sweeping workplace regulation. In a brief submitted to the court last week, the Biden administration argued the 1970 law that created OSHA makes plain the ETS “falls squarely within OSHA’s statutory authority.”
On December 15, MSCI hosted a free, one-hour webinar for members to offer an update on the OSHA vaccine and testing rule. While there has been news related to the legal status of the federal mandates since then, the webinar also provided details about the mandate itself, and how to comply. We encourage our members to listen to the webinar recording, which is here. The U.S. Chamber of Commerce has more information on the ETS and lawsuits surrounding it here.
U.S. companies are moving forward with their own vaccine mandates while the legal case challenging OSHA’s is settled. Specifically, a December poll indicated that about two-thirds of U.S. companies are planning to require at least some of their workers be vaccinated.