OSHA update on vaccine mandate

Unvaccinated employees of large companies will have more time before they have to start testing on a regular basis.

On the heels of the 6th U.S. Circuit Court of Appeals in Cincinnati decision to lift the November injunction that had blocked the COVID-19 employer-based vaccination and testing Emergency Temporary Standard (ETS), the Occupational Health and Safety Administration held a stakeholder briefing on the standard, which applies to companies with 100 or more employees. The briefing largely provided a walk-through of the sections of the ETS, reported the Retail Industry Leaders Association. A pre-recording of the briefing is available here and a copy of the slides are accessible here. 

Amidst the legal challenges, OSHA posted a “Litigation Update” to its website giving employers more time to comply with the vaccination or testing requirements outlined in the ETS. RILA said that the big takeaway from the update is that workers who are not vaccinated won’t have to start regularly testing until Feb. 9.

At least eight applications have been filed with Justice Kavanaugh (the justice that oversees the Sixth Circuit) seeking to stay the OSHA rule in the wake of the 6th Circuit’s decision, according to the report. He set Dec. 30 at 4 p.m. as the deadline for opposition papers, suggesting that the Supreme Court will not act on the applications before that date.

Following OSHA’s prepared remarks, the agency fielded questions that have come up in discussions with various RILA communities, including:

• How would any testing shortages impact enforcement of testing requirements?
  Presenters responded that OSHA would look for documentation of an employer’s good faith efforts to obtain tests and exercise enforcement discretion where an employer could not obtain an adequate supply of test kits for any given period of time.
• Could an employee apply for a religious exemption from weekly testing?
  Yes, it’s possible. If the worker’s religious belief if “sincerely held” they may be entitled to an accommodation from weekly testing. It is the responsibility of the employer to make the assessment as to whether the religious belief is sincerely held. OSHA directs employers to consult with the EOCC for guidance on making that determination.

OSHA also directed attendees to review the extensive FAQs on its site, which it expects to update with additional FAQs in “the coming days.” Among the expected updates, are additional on testing cost payment scenarios that OSHA/DOL has received questions on since issuing the ETS.