By Kathryn Sears, Catapult HR Advisor
The OSHA ETS for employers with 100+ employees is back in play, as the Sixth Circuit Court has dissolved the Fifth Circuit Court’s stay on the standard as of Dec. 17. This news follows the stay on the CMS vaccine mandate being lifted in around half of US states (refer to our legal updates for full state list).
- Appeal already in progress: The Supreme Court may choose to reinstate the stay or allow the mandate to continue (this will likely happen before Jan. 10).
- Some leeway on compliance: OSHA will not issue citations for ETS-related compliance violations that take place before Jan. 10. By that date, employers should be tracking vaccination status and have a written plan in place. Find other requirements in our initial ETS alert. OSHA will not issue citations for testing-related non-compliance that occurs before Feb. 9, which means that employers should begin requiring weekly testing by that date. Note that OSHA must see that organizations are making good faith efforts in implementing the standard.
Next Steps for Employers
Most employers were already prepared for the OSHA ETS but had not yet pressed “GO” on testing and other aspects of the programs. Employers have several choices:
- Implement the minimum steps required by the citation deadlines and delay the testing/vaccination until the last moment. (Note: This may result in an administrative scramble, plus larger testing numbers initially as workers won’t have advance notice of vaccination options.)
- Assume the ETS is fully “ON” and provide employees advance notice of the company’s intent to mandate vaccination/testing. Employers should cite that mandates begin on a scheduled date. (Note: This may result in employees being confused if the ETS is once again put on hold and you choose not to move forward.)
Whichever course you take, we’ll continue to follow up with Catapult legal updates. You’ll also notice we’ve recently announced the CMS vaccine mandate is back in play in certain states.
Lastly, be sure you completely understand your responsibilities under OSHA’s emergency temporary standard. Our initial alert on the OSHA ETS and our collection of Top 10 Member Questions about the OSHA ETS will help as employers move forward.
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