It didn’t take long for a federal court to stay OSHA’s vaccination/testing rule. This will take time to be resolved. What should you do in the meantime?
Under the standard, employers either have to enforce a mandatory COVID-19 vaccination policy or create a policy that allows workers to either get vaccinated or get tested regularly and wear a face mask.
Then a panel of judges in the Court of Appeals for the Fifth Circuit issued a stay on the ETS, finding there was “cause to believe there are grave statutory and constitutional issues with the mandate.”
Other circuit courts may receive appeals, and it all could end up at the U.S. Supreme Court. Estimates of how long it will take before a final decision is made range from weeks to months.
What should you do between now and then?
Some consensus
One thing is clear: While a stay of the ETS is in place, companies don’t have to abide by the rule.
However, the first deadline companies have to meet doesn’t come until Dec. 5, 2021, when they must have a plan in place. Full enforcement isn’t scheduled to start until Jan. 4, 2022. So there’s little effect on companies for the next few weeks.
The advice about what to do in the meantime is clear and uniform: Prepare as if the ETS will go into effect.
Here is the what various law firms have said:
- Smith Currie & Hancock: “With challenges like this spanning the country, employers will likely be waiting weeks, or even months, for a binding, nationwide determination. We recommend that employers use that time – beginning immediately if they have not already – to prepare for the ETS’s implementation in order to protect their employees and avoid costly citations and penalties for noncompliance.”
- Jackson Lewis: “As a best practice, if an employer can do so without suffering significant economic harm, they should start creating policies and procedures for compliance with the ETS to be prepared should the stay be lifted pending a resolution on the merits or should the court decide to uphold the ETS.”
- Spencer Fane: “For now, employers should continue to review and develop plans to comply with the ETS, specifically those provisions of the ETS that require compliance by December 5, 2021.”
As for the final resolution: You can find predictions for both outcomes. Some predict the ETS will be upheld, others say it will be struck down.
If the law firms’ recommendations aren’t enough to convince your company to prepare anyway, here’s one other thing to consider.
COVID-19 has been one of the most universally anxiety-causing safety factors for employees in the workplace for some time. All it takes is one phone call or email to OSHA from an employee who thinks a company isn’t complying, and at a minimum the employer can expect to receive an inquiry from the agency about what’s going on.
97, 98, 99 …
What if you’re right on the cutoff bubble for the ETS … you have just under 100 employees?
Ask HR to do a double-check on employee count. The ETS doesn’t distinguish between part- and full-time employees – they all count.
Even if an employee is 100% off-site or works 100% outdoors, they still count, although the vaccination or mask requirement won’t apply to them. Independent contractors don’t count. Seasonal employees do count if they’re hired directly and not hired through a temporary employment agency.
If you’re just under 100 employees now but plan to hire after the new year, you will be covered under the standard once your company reaches 100 employees or more.
