OSHA’s emergency temporary standard delayed

On Nov. 4, 2021, the DOL’s Occupational Safety and Health Administration (OSHA) announced the release of its emergency temporary standard to protect workers from coronavirus. But less than two days later a federal appeals court put a temporary halt on it.

The emergency temporary standard was supposed to become effective on Nov. 5, 2021, when it was published on the Federal Register. It would then remain in effect for six months or until COVID-19 no longer posed “grave danger” to the public. Plus, the emergency temporary standard stated employers had to comply with all the requirements by Dec. 6, 2021. That is, except for COVID-19 testing of unvaccinated or non-fully vaccinated employees which was to begin Jan. 4, 2022.

However, the 5th U.S. Circuit Court of Appeals granted an emergency stay of OSHA’s requirement that workers be vaccinated by Jan. 4 or face mask requirements and weekly tests.

“The president will not impose medical procedures on the American people without the checks and balances afforded by the constitution,” said a statement by Lousiana Attorney General Jeff Landry (R).

And at least 26 other states officially filed federal lawsuits against the vaccination requirement, too.

Continue preparations

But don’t count the emergency temporary standard out just yet. “The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them,” said Seema Nanda, Solicitor of Labor. “We are fully prepared to defend this standard in court.” 

The Biden administration doesn’t seem to be sweating the delay, pointing to the fact its safety rules pre-empt state laws.

If the emergency temporary standard vaccination requirement does withstand this legal battle, penalties of nearly $14,000 per violation will be implemented.

The emergency temporary standard would require employers to develop, implement and enforce a mandatory COVID-19 vaccination policy. That is, unless the employer adopts a policy requiring employees to choose between being vaccinated or regular COVID-19 testing and mask wearing at work.

It’s going to take a number of weeks to resolve all of the court challenges. So, use that time to work on your compliance in case the emergency temporary standard comes out on top.

What to do

Jeff Levin-Scherz, MD, population health leader at the benefits consulting firm Willis Towers Watson, suggests employers: 

• develop the infrastructure, and policies and procedures to address requests for medical or religious exemptions in a compliant and nondiscriminatory manner
• decide whether to offer testing as an option to vaccination, and
• set up the vendor contracts to put this into place. 

“Employers should evaluate their situations – assess whether vaccine mandates and/or regular testing will help reduce their risk of workplace transmission and workplace absences,” said Dr. Levin-Scherz. “COVID-19 vaccination remains a crucial component in efforts to get the pandemic under control. Employers can continue their important efforts to make it easy for employees to be vaccinated, including time off for vaccination or adverse effect, communication, and on-site vaccination.” 

We’ll keep you posted on the outcome.