Compliance Corner (Update): OSHA Withdraws Vaccine-or-Test Mandate

Friday January 28th, 2022

Estimated time to read: 1 minute, 30 seconds

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President Biden’s action plan for the Covid-19 pandemic, released in September of 2021, included a mandate that the Occupational Safety and Health Administration (OSHA) develop vaccine-or-test regulations for employers with 100 or more employees. Following this order, OSHA prepared an Emergency Temporary Standard (ETS) requiring covered employers to adopt a mandatory vaccination program for employees, or, at their option, to adopt a vaccination policy with a weekly testing alternative.

Meant to go into effect in early December, the mandate was halted by the U.S. 5th Circuit Court. The decision promptly went to the 6th Circuit Court of Appeals, where the stay was overturned, and then was reviewed by the U.S. Supreme Court earlier this month. On January 13th, the Court released its decision to uphold the original stay by a 6-3 vote. Since that decision, OSHA has withdrawn its ETS

To help answer questions with this ever-changing legislation, isolved’s People Services team is highlighting what employers need to know. Read below for some insight from HR Business Partner Kristin Wright:*

Does this mean employers don’t need to comply with the vaccine-or-test mandate?

It should be noted that although OSHA has withdrawn the ETS, it is preparing a new, permanent rule using the usual, slower rulemaking method. The rule would likely be similar to the ETS. Such a rule would likely face many of the same legal challenges that the ETS has faced. This Compliance Corner blog from November provides some tips for how employers can move forward with managing vaccination documentation of employees. 

Keep in mind that some employers operate in locations with state-approved OSHA plans, where the OSH Administrations for those states adopted the ETS. Those employers should refer to their OSHA organizations to determine whether their state will continue in the adoption of the federal ETS, or if they are halting enforcement.

What about employers of health care facilities?

It’s important to note that also on January 13th, the Supreme Court granted the continuance of the vaccine mandate for covered employees of facilities that receive Medicare and Medicaid funding. This mandate, which has come down from the Secretary of Health and Human Services, is also being litigated under the 5th and 8th Circuits for a final decision on its future.

Employers of employees working in covered facilities will need to continue efforts to comply with this mandate.

isolved is closely following all updates and will continue to provide more information as it becomes available.

Kristin Wright

About Kristin:

Kristin is an HR Business Partner for isolved’s People Services team and has 10 years of broad HR experience. Her expertise is in performance management and employee relations, and she specializes in California labor law. Her background is in entertainment, tech and business services.

* This blog is not legal advice. Please seek proper legal advice.

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