Supreme Court Stays OSHA’s Vaccine ETS: What Now?

On Jan. 13th, 2022 the Supreme Court blocked OSHA’s vaccine ETS from being enforced for the foreseeable future, but it has by no means disappeared.The courts upheld vaccine mandates on state and local levels. Please review these requirements with your HRC where you are located and conducting business.

OSHA’s emergency temporary standard (ETS) would have required businesses with at least 100 employees to ensure workers are vaccinated against the coronavirus or undergo weekly COVID-19 testing by Feb. 9.

However, the OSHA rule could return and we all should be prepared in case it does. The “OSHA’s ETS was only designed to remain in place for six months, after which it must be replaced by a permanent standard,” Fisher Phillips explained. The agency is considering a permanent vaccine-or-testing standard and accepting comments on the proposal through Jan. 19.

While the 6 to 3 SCOTUS decision means you no longer have to follow the January 10 deadline, there are still procedural items that you should discuss and plan for in the mean time.

What Now?

In light of the high court’s ruling, some employers may decide to drop plans to require vaccination or administer weekly testing programs, while other businesses might retain policies that align with OSHA’s now-halted ETS.

Private-sector employers still have the right to roll out a vaccine mandate or vaccine-or-testing policy that mirrors the ETS.

In a separate opinion on Jan. 13, the Supreme Court allowed the federal Centers for Medicare & Medicaid Services (CMS) to require COVID-19 vaccination for health care workers at Medicare- and Medicaid-certified providers and suppliers.

Employers that are covered by the CMS health care directive should note that the compliance dates have been extended. Workers must receive their first COVID-19 vaccine dose by Jan. 27 and be fully vaccinated by Feb. 26. Additionally, employers must track employees’ vaccination statuses and develop vaccination policies that include medical and religious exemptions and accommodations.

You can read more on the CMS rule here: CMS Rule

Priorities For Coming Days

If the ETS comes back online in the coming weeks and months as explained above, or if OSHA issues a permanent regulation along these lines, you can be sure that the agency will take an aggressive approach to enforcement.
Employers should look at taking these steps in preparation:
  1. Complete Your Administrative Obligations: Create A Vaccination Log, Develop Workplace Policies, and Implement Educational Sessions.
  2. Decide If You Want To Impose Your Own Vaccine Mandate
  3. Consider Creating Safety Obligations (Like Mask Mandates) for Non-Vaccinated Employees
  4. Consider Implementing Vaccine Incentives
As more information is released on this topic we will be sure to update you via our website or email. We will also do our best to guide you and continue to advise on best practices during the days ahead.

Please contact your HR Consultant soon so we can assist you in your planning and implementation.

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