As research develops and new information is continually uncovered, the guidelines and policies regarding COVID-19 continue to evolve, and it can be hard to keep up. If you’ve been hearing a blur of information about 100 employees, vaccine mandates, OSHA, and SCOTUS, but you haven’t been able to follow along, keep reading for a summary of the latest updates written in layman’s terms.
One of the most recent changes that affect our industry is OSHA’s withdrawal of the vaccination and testing ETS as an enforceable emergency temporary standard (ETS).
OSHA adopted the vaccination and testing ETS on November 5, 2021. It was intended to minimize the risk of COVID-19 transmission in the workplace and protect unvaccinated employees of large employers from the risk of contracting COVID-19 by strongly encouraging vaccination. The rule applied to all private employers with a total of 100 or more employees, firm- or corporate-wide.
The main premise of the ETS required affected employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy. An exception was offered for employers that, instead, established, implemented, and enforced a policy allowing employees to elect to either get vaccinated or to undergo weekly COVID-19 testing and wear a face covering while at the workplace.
There were various other requirements for employers to adhere to under the ETS. Some of them included: determining, verifying, and logging each employee’s vaccination status, supporting vaccination by providing employees with reasonable paid time off for receiving and recovering from each primary vaccine dose, and ensuring that unvaccinated employees wore a face covering when indoors or when occupying a vehicle with another person.
OSHA’s official withdrawal of the ETS comes just weeks after the Supreme Court voted in a 6-3 ruling to block the ETS. The Court held that, while OSHA has the authority to regulate occupational dangers, Congress has not given it the authority to regulate public health so broadly.
Under this ruling, large private employers were immediately released from requirements to comply with the vaccination and testing provisions of the OSHA ETS. However, the Supreme Court’s ruling does not prohibit employers from voluntarily electing to implement a vaccine mandate themselves, provided they comply with local and state law requirements and limitations.
It’s also important to note that it remains unclear what, if any, additional steps OSHA or the Supreme Court will take toward vaccine mandates.
Currently, OSHA has made it clear that the agency is not withdrawing the ETS as a proposed rule, only as an enforceable temporary standard. The agency has stated that it is now prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard for workplaces.
Although large private employers are no longer subject to the OSHA ETS, they still may have to navigate a muddle of state and local mandates that address vaccination in the workplace as well as additional guidance and increased enforcement of general workplace standards by OSHA.
As things change, employers will need to continue regularly monitoring developments at the federal, state, and local levels that may impact a workplace vaccination or testing policy.
