By John S. Gannon, Esq.

In a somewhat surprising decision, the U.S. Court of Appeals for the 6^th Circuit recently ruled in favor of the Biden Administration and reinstated the Occupational Safety and Health Administration (OSHA) emergency standard requiring private employers with 100 or more employees to either mandate the COVID vaccine for all employees or implement a weekly testing program. We suspect that the U.S. Supreme Court will have the last say in this tug-of-war,  but for now, employers that fall within the scope of the standard need to prepare as though the rule is a go.

In light of the 6^th Circuit’s ruling, OSHA has pushed back the compliance deadlines until January 10 to develop compliant practices and policies, and until February 9 to initiate testing programs. The agency put out the following message on its website:

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA 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 requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

So what does this mean for employers? For starters, if you have not started developing a policy required by the new emergency standard, you need to do that now. Similarly, you should think about how you will communicate the policy to your workforce. If you are going to offer the weekly testing option (which is not required by OSHA if the employer decides to simply mandate the vaccine for all), consider how that program will work: Will it be onsite? Will you test employees during working hours? Will you allow for rapid/at-home tests as well as PCR tests? And will you pay for the testing costs? However you decide to offer testing, you will need to train your workforce on that policy. Finally, as of the time we published this post, the federal contractor and CMS rules are still stayed (on hold) in the court system, so we will have to see how those play out with possible challenges to the Supreme Court.

Skoler Abbott is planning to do a webinar in the near future to go over the emergency standard as well as address the many open questions for employers, particularly around the area of weekly testing. Stay tuned for more details on that event.