Update on the OSHA COVID-19 Vaccination Emergency Rule

November 19, 2021

At a Small Business Administration roundtable meeting on Nov. 19, Eric J. Conn, chair of the OSHA Practice at Conn Maciel Carey LLP, gave a presentation on the status of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard. After providing the requirements of, and who is covered by the ETS, Conn gave an update on the legal status of the rule.

Key milestones in the rulemaking start with the initial directive from President Biden on Sept. 9 to OSHA to issue an ETS. The final version of the ETS was published Nov. 5 in the Federal Register, but legal challenges to the ETS commenced that very day and culminated in the 5th Circuit Court granting a TRO to stay the rule. There was a total of 34 legal challenges that were consolidated to the 6th Circuit Court. The first order of business for the 6th Circuit Court is whether the stay should be modified, revoked or extended. More legal action is anticipated in the coming days.

It is important to understand that the compliance deadline issued by OSHA has not changed even with the stay in place. This means that should the stay be lifted, the deadlines remain at the original dates: An employer must have a written vaccination policy in place by Dec. 6, and on that same date, employers must be able to confirm the vaccination status of their workforce and begin the testing requirement by Jan. 4, 2022.

It is important to pay attention to what happens to the stay. If it is revoked quickly, the original deadlines remain in place. Therefore, there are a few steps that contractors should undertake if they haven’t already done so. First would be to have a written plan for the ETS. Also, employers need to determine the status of their workforce in terms of vaccinations. Another idea is to start negotiations with testing labs to best facilitate those employees who wish to follow the testing option.

Conn’s full presentation can be viewed here: https://www.youtube.com/watch?v=krUfAmEBZ3w.