OSHA Moves Forward on Implementing Vaccine Mandate

WASHINGTON — The U.S. Court of Appeals for the Sixth Circuit recently dissolved the stay of the emergency temporary standard mandating all businesses with 100 or more employees require staff to get fully vaccinated or undergo weekly testing. 

“OSHA is gratified that the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace,” said a Department of Labor spokesperson, in an email to The Well News.

The ETS was initially set to be enforced by OSHA starting Jan. 4, 2022 but the compliance dates have been revised.

All requirements except the testing will now be enforced by OSHA as of Jan. 10, 2022 and testing requirements will begin to be enforced by Feb. 9, 2022.

According to the spokesperson, to account for any uncertainty created by the stay order, OSHA will provide employers with sufficient time to come into compliance. 

“OSHA will not issue citations for noncompliance with any requirements of the ETS before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard,” said the spokesperson. 

The OSHA emergency temporary standard experienced opposition in November when the U.S. Court of Appeals for the Fifth Circuit issued a temporary stay to block enforcement and implementation.

It also received opposition in the Senate, as Sen. Joe Manchin, D-W.Va., recently co-sponsored a bill to overturn the ETS through the Congressional Review Act, which allows for disapproval of final rules from federal agencies.

For now, any businesses which do not comply with the order by the dates set could see fines up to $14,000 per violation. 

“OSHA will work closely with the regulated community to provide compliance assistance,” said the spokesperson.

To comply with the mandate, employers will be responsible for retaining records of each employee’s vaccination status and ensuring that unvaccinated employees begin wearing face masks when indoors. 

Any employer allowing an unvaccinated employee to undergo weekly testing will have to determine if they will supervise the testing in-house or use a vendor and whether they or the employee will pay for testing.

Employers and employees might also face issues in securing weekly testing services or at-home testing kits. The recent surge in COVID-19 cases driven by the omicron variant has led to a greater demand for testing.

The Health and Human Services Department’s Testing and Diagnostic Working Group shared an internal model with Politico reporters which shows the need for more tests in the country. 

The department said that 3 million to 5 million daily tests could be needed by January or February with current daily testing levels around 1.6 million.

In efforts to address a potential shortage in testing kits, the White House on Tuesday announced efforts to secure 500 million at-home test kits and set up a government-run website where Americans can order them for free, along with establishing new testing sites and easier ways to locate them.

Alexa can be reached at [email protected]