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Employment Law

VACCINE ALERT-December 20

By December 29, 2021No Comments
  • APPELLATE COURT DISSOLVES STAY OF OSHA’S VACCINE MANDATE
  • OSHA UPDATES COMPLIANCE DEADLINES
  • OSHA’S COMPLIANCE DEADLINES NOT IMMEDIATELY EFFECTIVE IN UTAH

APPELLATE COURT DISSOLVES STAY OF OSHA’S VACCINE MANDATE: On Friday, December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay of OSHA’s vaccine mandate for employers with 100 or more employees in a split 2-1 decision. The court explained that OSHA has authority in “emergency situations . . . to promulgate an ‘emergency temporary standard’ that takes ‘immediate effect.’” Central to the court’s analysis is the fact that the ETS has a testing alternative. The court explained,

“The ETS does not require anyone to be vaccinated. Rather, the ETS allows covered employers—employers with 100 or more employees—to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces. Employers have the option to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly. They can also require those workers to do their jobs exclusively from home, and workers who work exclusively outdoors are exempt.”

Opponents of the mandate filed an immediate challenge with the United States Supreme Court, where the fate of the OSHA vaccine mandate now lies.  It is possible that the Supreme Court could reinstate a stay of the OSHA vaccine mandate, pending its review of the ETS.

Recall that the Biden Administration has two other vaccination mandates—one for federal contractors and another for healthcare employers who receive Medicare/Medicaid reimbursement.  Those mandates are still subject to a judicial stay, pending further review by the courts.

OSHA UPDATES COMPLIANCE DEADLINES: Wasting no time, on Friday evening, OSHA published the following compliance update on its website:

OSHA is gratified 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.

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 non-compliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 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.

In other words, covered employers have through January 10, 2022, to adopt and publish a vaccination policy, to ascertain and record the vaccination status of employees, and to implement a masking requirement for all unvaccinated employees. And employers have through February 9, 2022, before they need to collect negative weekly COVID tests from unvaccinated employees.  Remember, OSHA has published two alternative policy templates for employers—one with a testing option and another with no testing option. You’ll find these templates on OSHA’s website here.

OSHA’S COMPLIANCE DEADLINES NOT IMMEDIATELY EFFECTIVE IN UTAH:  Utah is one of 21 states that has a so-called “State Plan” for workplace safety.  As a State Plan state, Utah has created its own state agency to regulate workplace safety—the Utah Occupational Safety and Health Division of the Utah Labor Commission (“UOSH”).  Utah has the flexibility to adopt its own workplace standards, so long as those standards are “at least as effective” as OSHA rules. However, UOSH has not adopted OSHA’s vaccine mandate.

In response to the Sixth Circuit decision dissolving the stay of the OSHA vaccine mandate, Utah Attorney General Sean Reyes stated: “We remain confident that the [United States Supreme Court] will agree that the mandate is unconstitutional federal overreach. Regardless, this ruling does not immediately affect Utah because our state’s OSHA Division has not adopted the rule.”

This is not the first time that Utah has rebuffed OSHA’s workplace safety rules. In October, the US Department of Labor threatened to revoke Utah’s State Plan status for not complying with a previous OSHA COVID safety rule. More about that story is available from the Salt Lake Tribune.  If the OSHA vaccine mandate survives a review by the United States Supreme Court, and Utah fails to adopt a vaccination requirement that is at least as effective as the OSHA rule, we could have a showdown here in Utah. The likely outcome of such a dispute is the revocation of Utah’s State Plan status, with OSHA taking the reins once more to regulate workplace safety here. This dispute also buys Utah employers more time to comply with OSHA’s COVID vaccination mandate.

Also, recall that the Utah Legislature has enacted legislation (SB 2004) that places limits on employer vaccination and recordkeeping requirements (see our November 16 update for additional details).  If OSHA’s rule is upheld by the U.S. Supreme Court, it will preempt that Utah law.