Highlights of the OSHA ETS Wording that is Being Used as the Basis for a Permanent Standard Promulgation

This blog post can also be found on our Coronavirus Resource Center.

Federal vaccine mandates are facing new developments. All three federal vaccine mandates are under injunction in all states (and therefore temporarily unenforceable).

• OSHA ETS for employers with 100 or more employees: As of November 16, 2021, litigation related to the Federal OSHA vaccine mandate emergency temporary standard (ETS) for employers with 100 or more employees, was moved to the 6th Circuit Court of Appeals via the lottery process. The 6th Circuit Court of Appeals will now likely not rule on the ETS until sometime after the 10th of December which is past the initial deadlines set forward in the ETS.
• Federal Healthcare Worker Vaccine Mandate: The federal health care worker vaccine mandate is now under injunction in all states.
• Federal Contractor Vaccine Mandate: The Federal contractor vaccine mandate has been put under injunction in all states as of December 6, 2021.

Watch Injunction Timing and Court Proceedings

While the ultimate outcome of the legal proceedings related to these mandates is still unknown and the court proceedings are still on going, the best advice is to:

1. Continue to comply with local mandates and regulations.
2. Continue to apply prevention methods and follow the policies you have in place to date.
3. If possible for you as an employer, continue to have someone within your organization monitor all COVID-19 regulatory action for the company as a whole and your individual locations.
4. Keep a close eye on the outcome of the court proceedings and injunction status of all mandates that may affect you as an employer. Remember that more than one could apply to different segments of your employee population.
5. If any of the three different federal mandate provisions apply to you, be sure you either continue complying with them or are ready to put compliance measures into place quickly. This may require the logistical coordination for testing and/or vaccines to be resolved in advance.
6. Do not assume that all federal mandates will be completely thrown out. It is difficult to predict at this juncture.

Looking Ahead to Vaccine Mandates

If the OSHA ETS is ultimately found to be unenforceable and pulled back, federal OSHA will be unable to issue a similar ETS. This same standard does not necessarily apply to the healthcare and federal contractor mandates. Employers could see a situation where pieces and parts of the federal contactor and health care vaccine mandates are pushed forward in different ways. Continued vigilance around monitoring these regulations may be needed over time.

When the pandemic first started we recommended that employers who could, should designate an individual to actively monitor regulatory items around COVID-19. That may continue to be necessary for the foreseeable future. Making this measure even more important is the possibility that we could start to see more local efforts (such as the one underway in NYC) to put forth vaccine mandates at the local level. Only time will tell.

Vaccine mandates aside, continued vigilance around programs currently in place is still important. Once a program is in use, if you decide to change your methods of prevention, be sure that you document your reasoning for the change. Having protocols in place but not enforcing them or just stopping prevention methods without a documented reason can provide OSHA with an opportunity to cite you even without an ETS or other specific standard in place.