• The U.S. Department of Labor's OSHA announced an Emergency Temporary Standard (ETS) for vaccine mandates and testing.
  • Enforcement of the standard is currently paused due to legal challenges. 
  • Erigo recommends that employers prepare for future enforcement of the standard.

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) for vaccine mandates and testing. As the decision on whether this is legal plays out in the court system, it leaves many organizations’ leaders uncertain about the future.

What does OSHA’s ETS include?

On Nov. 4, 2021, OSHA announced the ETS. In short, this ETS said employers with 100 or more employees would be required to mandate that all employees be vaccinated against COVID-19 or undergo weekly testing.

OSHA said it expected that the Vaccination and Testing ETS would result in approximately 23 million individuals becoming vaccinated. The agency also conservatively estimated that the ETS will prevent over 6,500 deaths and over 250,000 hospitalizations.

The ETS said employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work. This placed a large burden on employers and left them with many questions on logistics and costs associated with meeting the mandate.

Is the standard being enforced?

Enforcement of the standard, which initially had compliance deadlines in early December and January, is currently paused.

On Nov. 12, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard. The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order,” OHSA announced.

Additionally, the 5th U.S. Circuit Court of Appeals wrote that the administration’s COVID-19 vaccine and testing mandate was “fatally flawed” and ordered that OSHA not enforce the requirement “pending adequate judicial review” of a motion for a permanent injunction.

What should organizations do in the meantime?

The Society for Human Resource Management (SHRM) said since multiple appeals were filed in other courts, the 6th U.S. Circuit Court of Appeals was randomly selected to hear a consolidated action. SHRM notes that the U.S. Supreme Court could ultimately decide whether to uphold the ETS.

As the ETS works through the courts, Erigo - along with other industry organizations such as SHRM - recommends that employers prepare for future enforcement of the standard.

After the Fifth Circuit Court ruling, OSHA said, “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

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