OSHA’s Vaccine Mandate Faces Legal Challenges - Worksite Medical
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Recently, there’s been quite a bit of news generated by OSHA’s newest Emergency Temporary Standard (ETS). Now, you can add another wrinkle into the mix.

Designed to cover any business with 100 or more employees, the ETS states that employers must ensure all workers are either vaccinated or undergo weekly COVID-19 testing, in an effort to stop the spread in the workplace.

OSHA’s ETS states that employers have until Dec. 5, 2021 to develop and submit a written vaccination/testing plan. Then, starting Jan. 4, 2022, enforcement will become mandatory, just like any other OSHA safety standard.

However, the ETS has been met with resistance, and faces legal challenges in the courts.


The Debate Over OSHA’s Vaccine Mandate


On Nov. 12, the 5th U.S. Circuit Court of Appeals, which has jurisdiction over Louisiana, Texas, and Mississippi, halted the implementation and enforcement of OSHA’s ETS.

In granting the stay, they ruled that “the agency’s decision to include only workplaces with 100 or more employees in the ETS belies the premise that any of this is truly an emergency.”

Additionally, the three-panel judge produced a 22-page opinion on the ETS, stating that it “grossly exceeds OSHA’s statutory authority.”

The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.”

What’s important to note here, is that this is not a final ruling on the merits of the standard. Rather, it’s simply putting a pause on it for the time being. As such, the case continues to work its way through the court system.

Regardless of what it may seem, OSHA hasn’t abandoned the standard, and argues that it does in fact, have the authority to implement and enforce it.

As of right now, they have every intention of following through with the policy, barring a direct and final court order to do away with it.


The Next Step for the ETS


The next step in the journey will take place in the U.S. 6th Circuit Court in Ohio, where it faces 34 separate petitions, all to be heard by the same court. From there, the stay on the ETS could be upheld, extended, or lifted altogether.

However, legal experts are advising business owners to prepare for the ETS now, rather than wait for a ruling.

But, why make plans for a standard that might never end up happening?

Well, if the courts rule that OSHA can proceed with the standard, the Dec. 5 and Jan. 4 deadlines don’t leave you much time to get your affairs in order.

Businesses that wait until the last minute will be left scrambling, and potentially face stiff fines for lack of compliance.


What Steps You Should Take Now


You know the old saying, “An ounce of prevention is worth a pound of cure.”

It’s not just medical advice; it holds true in the business world as well. Planning now will save you a lot of headaches if the stay is lifted and the ETS is upheld.

Proactive steps include finalizing and approving a written vaccination policy, compliance policy, communicating expectations to your workers, and budgeting for any expenses.

You’ll also want to prepare a roster documenting the vaccination status of your employees (confidential of course, like any other medical record) and find out who would need weekly testing if the standard becomes enforced.

If your workers choose to get vaccinated, you also need to plan on allowing them time off for it. Currently, federal law requires up to 4 hours of paid time off to receive the vaccine, plus time off for any side-effects.

However, there are many caveats to the rules regarding this time off, such as whether your employee already receives paid sick days. A more detailed breaking of these regulations can be found here.


The Takeaways


If you’ve been following this ETS for any length of time, you’re probably aware that news changes on a seemingly daily basis. As a result, keeping up with the latest information isn’t always easy – but it is necessary.

As the case works its way through the court system, you’ll want to make sure you plan accordingly and keep your business ready to comply.

If the courts uphold the stay or do away with the standard entirely, then you won’t be any worse off.

However, if the stay is lifted, and OSHA proceeds with implementation, you don’t want to be scrambling at the last minute.

If you need help planning and implementing a vaccination and testing policy, Worksite Medical can help.

And, we’ll bring everything you need right to your workplace. From testing kits to employee training, there’s no reason to send your team away from the job when it’s all brought right to you!

Make sure to sign up for this limited-time program by Dec 13.

For details check out https://www.worksitemed.com/services/covid-19-test-training, or complete the form below to schedule or get your risk-free quote.​

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