Happy Holidays! We’re continuing to receive many questions about the OSHA Vaccination mandate. While there has been a flurry of activity with the 6th Circuit Court of Appeal’s lifting the stay and the Supreme Court’s agreement to review legal challenges on December 22nd, employers are still in a position to hurry up and wait. With that in mind, we wanted to share some helpful advice from our friend, Lee Geiger at Graydon Law. Following is his post originally appearing December 21, 2021, and available on his HR Matters Blog here.
It’s on. It’s off. It’s on again … and this time they really mean it. Maybe. Probably possibly for sure. Clear as mud, right? Under the cover of darkness Friday night, the 6th Circuit Court of Appeals in Cincinnati lifted the “stay” on the OSHA Vaccine mandate. OSHA actually took a victory lap at midnight Friday night while opponents filed appeals with the US Supreme Court. This story is not over, but we wanted to get information out so that companies can continue (or start) preparing in case the rule remains in place. If they haven’t already, your employees will start bombarding you with questions. Here’s what we know as of 7AM Tuesday morning:
- WHAT HAPPENED? – The 6th Circuit reinstituted the OSHA Vaccine Mandate for employers with 100 or more employees who are not otherwise subject to the Federal Contractor or CMS (Healthcare) mandates. That means that the OSHA rule is back “on”. However, there are appeals pending. The decision is a 77-page cure for insomnia.
- WHEN? – Late Friday night. Many states filed petitions (motions/appeals) with the US Supreme Court on Monday. Justice Kavanaugh has given the Biden administration until December 30 to respond to the motions. That means that the earliest we will have new direction is December 31. Happy New Year! More likely is that we will not know more until at least January 3, 2022.
- WHEN DO WE NEED TO BE IN COMPLIANCE? – OSHA issued a statement indicating that they will not begin issuing citations until January 10 for the initial components of vaccination verification/masking (original deadline of December 5) and February 9 for the testing component (original deadline of January 4) as long as the employer is acting in good faith to comply. (See below for OSHA’s statement. It’s clearly a victory lap, but that lap might be premature because the race is not over yet.)
- DOES THIS APPLY TO ALL BUSINESSES? – No. Only those with 100 or more employees who are not subject to the federal contractor or CMS rules. If you are covered by those rules, the “stay” remains in place and you don’t need to do anything differently. However, those employers may also need to pivot quickly at some point, so it may be worthwhile to continue verifying vaccination status.
- WHAT HAPPENS NEXT? / WILL THIS REALLY GO INTO PLACE? – This is unclear. There is no way to know when (or if) the Supreme Court will reinstitute the stay or allow the mandate to go into place. This was a major test of the OSHA vaccine mandate, and it “passed” the test. While there will be future tests, the fact that it passed this one may indicate that it will fare similarly in others.
- WHAT SHOULD MY COMPANY DO?
- Take a deep breath. You need to get moving, but you have some time.
- If you are already bombarded by questions from employees (or your CEO), you can communicate to them that you are aware of the 6th Circuit’s decision to reinstate the vaccine mandate, but that things are still shaking out in the court system. Let them know that you will be in touch with what that means for the company but that the earliest anything will go into place is January 10 – i.e., we have some time.
- Continue (or start) gathering proof of vaccination to comply with the first requirement of the mandate (the original December 5 deadline is now January 10). If you did not talk to us about this process before, please give us a call and we can discuss the best way to gather the information and remain in compliance with the ADA and other laws.
- Get your policy together, but don’t implement it yet. This is not an “early bird gets the worm” situation. Quite the opposite. There’s a decent chance that this does not go into effect. It’s a good idea to let employees know what’s going on, but hold off on implementation until January 10.
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.
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. OSHA will work closely with the regulated community to provide compliance assistance.
While employment matters are outside of HORAN's ability to advise, we remain committed to providing relevant information and content to you as it becomes available. We are here to assist with selecting vendors to support administration and compliance with OSHA's vaccination mandate if upheld. Additionally, we can help support the design of any incentives as part of your group health plan strategy. Please reach out to your HORAN representative with questions or for additional information at 800.544.8306.
The information contained in this document is informational only and is not intended as, nor should it be construed as, legal or accounting advice. Neither HORAN nor its consultants provide legal, tax nor accounting advice of any kind. We make no legal representation, nor do we take legal responsibility of any kind regarding regulatory compliance. Please consult your counsel for a definitive interpretation of current statute and regulation and their impact on you and your organization.