December 22, 2021
Due to recent Court action, we have begun to receive questions related to the federal OSHA rule on COVID-19 vaccination or testing. In response, we prepared a Q&A to address the most asked questions. This is a fluid situation, so we will continue to share information as it becomes available.
- Is there a federal rule that requires workers be vaccinated or tested?
Yes. The Occupational Safety and Health Administration (OSHA) federal emergency temporary standard (ETS) issued in November 2021 requires that employers with 100 or more employees ensure workers have been vaccinated for COVID-19 or be tested weekly. It is estimated that the order will impact an estimated 84 million American workers.
- It appeared that the OSHA requirement was halted? What happened?
Several states sued contesting that the OSHA rule was unconstitutional. A federal court ordered a nationwide “delay” of the OSHA rule. However, on December 17, 2021 a federal appeals court over-ruled the delay and ruled that the OSHA mandate could proceed.
- With rapid changes related to this issue, does the rule take effect right away?
In light of the rapid changes, OSHA published the following guidance regarding the reinstatement (see link to current guidance here):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, 2022 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022 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.
- Might the OSHA rule be delayed again or even ruled unconstitutional?
It is possible but unclear. Several groups have already appealed this latest decision to the Supreme Court. It is possible the US Supreme Court will hear the case in early 2022. Absent other court delays, employers subject to the ETS should prepare to adhere to the OSHA requirement.
- Do employers have to cover the cost of “testing” for unvaccinated workers?
No. The testing requirement under the OSHA mandate is what is referred to as “surveillance testing”. Employers do not have to cover the cost of surveillance. Also, group health insurance plans will not, unless directed to do so by employers, cover the cost of surveillance tests. Group insurance will only cover tests for those that may have been exposed or are feeling ill. Workers will have to pay for any testing costs for surveillance unless their employer voluntarily chooses to cover the cost.
- Has OSHA mandated the type of test one must get?
No. OSHA has not specified what test one must get. A machine test or rapid test can be used. An employer can separately indicate what test they are willing to accept.
- Do employers need to track and report on vaccines and testing?
Yes. Employers will need to collect and track proof of vaccinations and testing and produce reports if requested by OSHA.
- Are there penalties for companies that fail to comply?
Yes. Those companies that fail to comply may be fined $14,000 per infraction.
- Are there companies that can assist with vaccinations, testing and tracking?
Yes. There are various companies in the business of administering the vaccine, testing and tracking. If you need assistance with finding such companies, please contact your Conner Strong & Buckelew account representative.
- Where can I find all the OSHA requirements?
Below are links to the latest OSHA updates:
What should employers do now?
Employers are encouraged to check with their labor/legal advisers regarding compliance. Some may take a “wait and see” approach, at least in the short term, as many employers may determine that waiting a little longer before incurring the testing and related costs may be most appropriate. All employers should at least consider taking immediate steps to demonstrate “good faith” efforts, as OSHA has specifically stated it will exercise enforcement discretion for employers attempting to comply with the ETS in “good faith”. One of the most challenging administrative requirement of the ETS is likely creating the roster of the vaccination status of all employees. As such, businesses could choose to start complying with this process now as part of its demonstrated good faith efforts.