By Martin J. Boetcher

The Occupational Safety and Health Administration issued an Emergency Temporary Standard on Nov. 5, 2021, for the purpose of minimizing the risk of COVID-19 transmission in the workplace, however, the OSHA rule is being challenged in the courts. 

The United States 5th Circuit Court of Appeals granted a motion to stay the ETS and ordered OSHA “take no steps to implement or enforce” the ETS “until further court order.” Through a random court lottery process, on Nov. 17, 2021, the case and several others were transferred to the United States 6th Circuit Court of Appeals.

Following these legal challenges to the ETS rule, OSHA posted a notice on its website stating “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.”

Provisions of the vaccine mandate  

Under the OSHA rule, private employers with 100 or more employees are required to develop, implement and enforce a mandatory COVID-19 vaccination policy.  The emergency standard does not apply to federal contractors or providers of healthcare services, which are subject to separate standards.  

Employers have the option to instead establish, implement and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering in the workplace.  

Employers are required to ensure that each employee who is not fully vaccinated be tested for COVID-19 at least weekly.  The OSHA standard does not require employers to pay for the cost associated with the weekly testing.  Employer payment for testing may be required by other state laws or collective bargaining agreements.  

Employers are required to provide employees with up to 4 hours of paid time off to receive each primary vaccination dose and paid sick leave to recover from side effects experienced after each dose.  

Deadlines for employers if the rule is upheld

If the rule is upheld, by Dec. 5, 2021, employers covered by OSHA regulations must comply with all the requirements of the new standard with the exception of the weekly testing for unvaccinated employees.  

If the rule is upheld, employees who are not fully vaccinated must begin wearing a face covering when indoors beginning Dec. 5. Beginning on Jan. 4, 2022, employees must have received all doses of the vaccine and unvaccinated employees must begin undergoing weekly testing.  

Effect of Court challenges to the new rule

The consolidated court challenges to the ETS rule are now pending in an action in front of the United States 6th Circuit Court of Appeals, which will need to decide whether to remove or modify the stay of the ETS rule.

It is uncertain if any of these challenges will cancel the OSHA rule, or when the court will issue its decision. In the meantime, employers are encouraged to consult with their attorneys about the OSHA rule and its requirements and the status of the court challenges.

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Martin Boetcher is a lawyer with Harrington, Hoppe and Mitchell, and practices in employment law. He can be reached at mboetcher@hhmlaw.com or at (330) 744-1111.