COVID-19 Employer Vaccine Mandate Update

OSHA’s Next Steps Towards a COVID-19 Standard

What Employers Need to Know About OSHA’s Emergency Temporary Standard (ETS)

As of January 25th, 2022, OSHA issued a notice withdrawing the currently stayed Vaccinate or Test ETS that applied to employers with 100+ employees. This action will end the debate over whether OSHA has the authority to issue such an emergency temporary standard.

However, OSHA also stated that the organization plans to pursue a permanent standard:

"Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule under section 6(c)(3) of the Act, and this action does not affect the ETS’s status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS. See 29 U.S.C. 655(c)(3). Notwithstanding the withdrawal of the Vaccination and Testing ETS, OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace."

Looking ahead, will the ETS be revived in the form of a permanent COVID-19 standard? Possibly. The process will not be overnight, but we do expect future decisions and announcements by OSHA.

For now, employers can expect OSHA to continue inspecting workplaces for COVID-19 hazards and issuing citations for violations of existing OSHA standards that could implicate COVID or use the General Duty Clause, while continuing to pursue its COVID-19 National Emphasis Program.

The possibility still exists that OSHA may pursue a more targeted emergency standard, which SCOTUS seems to approve of based on its January 13th ruling.

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Will OSHA Appeal the Stay Issued by the Supreme Court?

Employer Resources and Next Steps:

U.S. Secretary of Labor Marty Walsh issued the following statement on the Supreme Court ruling on the department’s Occupational Safety and Health Administration’s Emergency Temporary Standard (OSHA’s ETS) on vaccination and testing:

"I am disappointed in the court’s decision, which is a major setback to the health and safety of workers across the country. OSHA stands by the Vaccination and Testing Emergency Temporary Standard as the best way to protect the nation’s workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans."

OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace, and COVID is without doubt such a danger. The emergency temporary standard is based on science and data that show the effectiveness of vaccines against the spread of coronavirus and the grave danger faced by unvaccinated workers. The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.

We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.

Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause."

Employers should also review the guidance issued but the EEOC before making any final decisions regarding workplace vaccination and testing mandates.

This page is not a news source and does not provide legal advice or counsel.

As of January 13, 2022, the U.S. Supreme Court handed down its 5-4 decision to block the OSHA Emergency Temporary Standard (ETS) from mandating employers with 100+ employees to require employee vaccination or enforce a weekly testing policy in the workplace.

Another ruling stated that the Centers for Medicare & Medicaid Services (CMS), part of the Department of Health and Human Services (HHS), will move forward with a CMS Vaccination Mandate Rule that expects 80% staff vaccination by January 28, with a plan to achieve 100% vaccination within 60 days.

The CMS Rule applies to specific healthcare services, support or suppliers that are regulated under CMS standards, including hospitals, nursing homes, rehabilitation clinics and other facilities that receive Medicare or Medicaid funds.
By February 28, CMS facilities must ensure that 100% of covered staff are fully vaccinated, except those with a granted exemption request and those having a temporary delay in receiving the vaccination.
There is some enforcement discretion. A facility with a more than 90% vaccination rate and a plan to achieve a 100% staff vaccination rate within 30 days of February 28 will be exempted from enforcement actions

Shortly after the Court released its decision, the White House issued this statement:

"As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated. The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy. I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities."

So what happens now?

Companies, states and cities can make their own guidelines in relation to vaccines in their communities and workplaces

Any dates I should keep in mind?

CMS employees have until February 28 to get vaccinated.

I don’t want to read everything above, in one or two sentences, what happened?

OSHA’s ETS, or the Employer Vaccine Mandate for businesses with more than 100 employees, is stayed by the U.S. Supreme Court. The CMS Vaccine Mandate is upheld and employees working for CMS organizations should be vaccinated by February 28.

This page is not a news source and does not provide legal advice or counsel.

On Friday December 17, 2021, the 6th U.S. Circuit Court of Appeals in Cincinnati lifted an injunction blocking a rule from the Occupational Safety and Health Administration (OSHA), which requires businesses with at least 100 employees to mandate the COVID-19 vaccine within their workforce. With rapidly changing news updates, it’s difficult to know the mandate differences per State, as well as predict how the Federal Emergency Temporary Standard (ETS) will be decided and implemented. Consider this your one-stop resource on all breaking news updates surrounding employee and company vaccination policy.

Are Companies Required to Require Vaccines Now?

For now, the answer is YES. The employer mandate is back on.

By What Date Do Employees Need to Provide Proof of Vaccination Status?

The ETS stay has been lifted and OSHA.gov has an effective date of January 10, 2022, though OSHA states it will not take action on non-compliance until after February 9, 2022.

What Happens after OSHA’s Effective Date?

After this date, employers allowing employees to conduct business on their behalf without proof of employee vaccination status risk a $14,000 fine per incident—yes, that’s per employee.

What’s Next for the Employer Vaccine Mandate?

Further decision on the employer vaccine mandate will fall to Justice Brett Michael Kavanaugh, who has asked President Biden to respond to newly filed lawsuits regarding the requirement by December 30. Justice Kavanaugh has two options:

1. He can rule alone to institute another stay and questions will remain.
2. He can invite all court justices to weigh in.

Pryor Learning Will Keep You Updated on the Vaccination Employer Mandate

Continue to check here for new updates as they become available.

This page is not a news source and does not provide legal advice or counsel.