Question: I read your Alert, announcing a hold on federal OSHA’s COVID-19 (coronavirus) emergency temporary standard (ETS) for employers with 100 or more employees until a federal court hearing occurs. Does that mean we can stop preparing for the rule (which requires vaccination or weekly tests), or is there something we should still be doing?
Answer: You can put the brakes on, but we don’t recommend that you stop completely. While it’s tempting to assume that the federal court action will take a long time, we believe the litigation will be fast-tracked. After the ETS was published on November 5, 2021, a total of 27 lawsuits were filed, spread across 12 different courts of appeals. As we reported in our recent Alert, the Fifth Circuit Court of Appeals was first out of the gate in imposing a temporary stay on OSHA’s rule. On November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation held a lottery that consolidated all the lawsuits and randomly selected the U.S. Sixth Circuit Court of Appeals to handle them. Given the intense interest in the case and OSHA’s position that the need for the rule is urgent, we anticipate the court will move as quickly as possible in rendering a decision. For now, OSHA has posted this message to its COVID-19 ETS webpage: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
Depending on your location, another consideration is that Arizona, California, Oregon, and Washington—which each have their own state safety agencies—could adopt their own vaccine mandates, regardless of whether the federal ETS ultimately survives. (Such a scenario is highly unlikely in Arizona but not in the other three states.) Below are a few basic steps you can take to avoid being caught flat-footed if the rule is finalized.
Determine if the rule, as written, would apply to your company. Count your total employees, including part time, seasonal and temporary employees, per corporate entity (common ownership wasn’t addressed in OSHA’s ETS FAQs, only corporate entities). If your corporate entity employs fewer than 100 employees, great, you can stop reading (unless your state decides to impose its own vaccine mandate, of course).
Figure out how many of your employees may need to do weekly testing. You can do this by conducting a simple, anonymous survey, asking: (1) Are you vaccinated?; (2) If yes, are you willing to show proof of your vaccination status?; and (3) If you’re not vaccinated or willing to show proof, will you request a religious or medical exemption to the vaccine or weekly testing? From this, you can calculate how many employees will need to do weekly testing and how many religious and disability exemption requests you may receive. (Important: if you have a union, share a copy of this poll beforehand to maintain open lines of communication and to avoid a claim of direct dealing with union-represented workers.)
Investigate your testing options. Get a handle on the types of tests (rapid test versus PCR test) and testing locations in your area (e.g., on-site clinics, pharmacies, government drive-up sites, and home kits). Assess pros and cons for each, such as ease of access, hours of operation, cost (to you and the employee), reliability, and speed of results.
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