07 Jan U.S. Supreme Court Hears Oral Arguments on OSHA ETS

OSHA ETS: Where are we now and what do we know

The United States Supreme Court heard oral arguments today on the legality of the ETS issued by the Occupational and Safety Administration in early November. Since the ETS release, legal challenges have been making their way through the legal system taking employers nationwide on a bit of a see-saw ride on whether the ETS will or will not be instituted come Monday.

Previous to the oral arguments today, on December 17^th, a three-judge panel from the 6^th Circuit Court of the United States lifted the latest stay and revived the ETS with immediate effect. Within hours of the ruling, an appeal was filed to the US Supreme Court by its challengers and OSHA made announcements on a timeline for enforcement.

Latest ‘Need to Know’ for Employers

Pending any overarching changes that may come from a Supreme Court ruling after oral arguments today, the ETS will take immediate effect on Monday, January 10th. OSHA has announced that it will not issue citations for noncompliance with any requirements of the ETS before January 10^th, nor will it issue citations for noncompliance with the standard’s testing requirements before February 9^th so long as an employer is exercising reasonable good faith efforts to come into compliance with the standard. Given that these dates are basically upon us, what next steps should an employer be focused on now?

1. Determine if you are indeed covered by the ETS. To do so you need to answer the following:
   1. Is your workplace normally covered by OSHA?
   2. Do you have more than 100 employees nationwide?
   3. Are you exempt because you are covered by another ETS or mandate (i.e. Healthcare COVID-19 ETS or Federal Contractor mandate)?
2. Gather vaccine status on your workforce.
   1. Develop the required vaccination roster for employees. Note whether the employee is fully vaccinated (as defined by the ETS).
   2. Determine if you will mandate vaccines or conduct testing.
3. .Develop your vaccine-or-test policy.
   1. Create the required mandatory vaccine and/or testing/masking policies required under the ETS.
   2. Be prepared to implement said policy should the OSHA ETS move forward to enforcement or if the Supreme Court ruling does not change the current ETS status.
4. Conduct compliance training & educate the workforce.
   1. Ready communications to inform and educate your workforce about your new policies, including posting necessary notices.
   2. Offer training for your managers to aid them in proper communication and enforcement of the said policy.
5. Prepare a process/procedure for unvaccinated employee testing.
   1. Keep a roster of unvaccinated employees, as well as documentation of weekly test and test result.
   2. Provide a clear policy/procedure for testing and submitting test results.
   3. Keep negative/positive test results documented per employee as employees testing positive within the immediately preceding 90 days do not have to comply with a testing requirement.
   4. Provide clear policies for employees (vaccinated or unvaccinated) who may test positive for COVID-19.
6. Handling exemptions:
   1. Federal law requires that you still need to consider and possibly accommodate valid medical and religious accommodation requests to a vaccination requirement.
   2. Ensure your policies provide provisions explaining how employees can request exemptions, including providing access to necessary paperwork, timelines for submission, and any additional policies or procedures that may impact exempt employees (such as remote work requirements, etc).

What’s Next?

Again, we wait to see what the justice system concludes. While many assumptions and predictions are being made, we simply don’t know what we don’t know. The only facts currently are, as of today (January 7, 2022):

• The OSHA ETS is due to take effect on Monday, January 10, 2022
• The oral arguments to both the employer mandate and the CMS rule have concluded. The US Supreme Court is expected to either institute a stay to allow additional time to review the arguments and make a ruling or, and less likely, issue an immediate ruling on the legality of the OSHA ETS and its implementation. Should a stay be issued by the high court, it is widely expected to be announced sometime over the weekend before the ETS can take effect on Monday.

Stay Tuned next week for more details as we monitor this developing situation.