Updated January 13, 2022: The Supreme Court of the United States (SCOTUS) has blocked OSHA’s Emergency Temporary Standard (ETS) regarding the COVID-19 vaccination or weekly testing mandate for employers with 100+ employees.
Updated December 20, 2021: After the U.S. Court of Appeals ordered OSHA to “take no steps to implement or enforce [the ETS]… until further court order,” the 6th U.S. District Court of Appeals lifted the stay on December 17, 2021. Per the DOL:
“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.”
The DOL will not issue citations for noncompliance with the ETS prior to January 10, 2022 and no citations for noncompliance with the testing requirements prior to February 9, 2022, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
Since the OSHA Emergency Temporary Standard (ETS) was passed, many employers have had questions about how this impacts their company. Here are a few FAQs our clients have asked about this requirement.
Is my company required to comply with the ETS?
There are several requirements that must be met for your company to fall within jurisdiction for ETS compliance. To qualify, your company must:
1. Be a private employer that is not a federal contractor or healthcare employer, both of which have their own COVID-19 workplace safety mandates.
2. Employ at least 100 workers nationwide (not just at your location).
- Seasonal, temporary, and part-time employees are included in this count threshold.
3. Operate within a state that has federal OSHA jurisdiction.
- States that have their own State OSHA plans have government agencies that enforce safety regulations and are required to adopt the federal ETS or alternative regulations/standards within 30 days. These states include Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. (FisherPhillips)
- Companies that operate in multiple states will need to follow the standards and timeframes in each state.
What are the employer penalties for non-compliance with the ETS?
Your company may be fined by OSHA for up to $13,653 for each violation of the ETS. Any willful or repeated violations may be fined up to $136,532.
This means you could be fined by that amount for each facility, an area within a facility, or each employee within a facility. You could also face penalties for whistleblowers, retaliation, negligence, or other claims by employees.
Who pays for COVID-19 testing costs?
The ETS does not require nor prohibit employers from paying for testing costs. However, if you are considering having employees pay for their own testing, check with legal counsel first. There may be other laws, regulations, or collective bargaining agreements prohibiting you from doing so.
What about the “stay” that is blocking the ETS?
Shortly after the ETS was published, the Fifth Circuit Court of Appeals issued a “stay” (temporary stop) of the ETS until courts could sufficiently review it. However, the 6th U.S. District Court of Appeals lifted the stay on December 17, 2021.
Why would I opt to create a mandatory vaccination policy instead of a vaccinate-OR-get-tested-weekly policy?
You may find the process of collecting and verifying weekly test results logistically cumbersome. To simplify your employer obligations for compliance with the ETS, you may want to consider a mandatory vaccination policy. Keep in mind, however, that you may receive employee push-back with a mandate.
What do I have to do to comply with the ETS?
Per the DOL, enforcement for the ETS will not begin prior to January 10, 2022, which requires you to have taken all the steps mentioned here except implementing weekly testing and having employees fully vaccinated. (February 9, 2022, is the enforcement date for testing and vaccination compliance.) Get your vaccination policy in place and educate employees about what you currently know, acknowledging it could change.
Where do I find more information?
To see a comprehensive list of FAQs, visit OSHA or click any of the below-mentioned sources for more details.