As we recently reported, After OSHA issued its emergency temporary standard (“ETS) for Covid-19 mandates, i.e., mandate or test rule, a federal appeals court issued an order blocking the ETS from taking effect nationwide. Shortly thereafter, all federal challenges to the OSHA ETS were consolidated and sent to the Sixth Circuit Court of Appeals, which many employers assumed would give them relief for the holidays. However, late December, the Sixth Circuit dissolved the stay and allowed OSHA to enforce the ETS nationwide.
OSHA took action immediately! OSHA posted updated deadlines on its website at https://www.osha.gov/coronavirus/ets2. To give employers some relief, OSHA stated it will “not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirement before February 9, so long as an employer is exercising good faith efforts to come into compliance with the standard.”
What does this mean for employers? All employers in federal OSHA states must take steps to demonstrate “reasonable, good faith efforts” to comply with the ETS immediately. The following steps are recommended:
1. Determine the vaccination status of the workforce. (If the employer decides to implement the testing mandate, then unvaccinated employees must show proof of a negative Covid test by February 9);
2. Decide on the mandate – vaccinate or test;
3. Develop the appropriate policies and train managerial employees;
Employers should mindful that the Supreme Court has been asked to replace the stay. Stay tuned for more.
The attorneys at York Bowman Law, LLC can assist with Covid-19 compliance.