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Employment Law Notebook

OSHA Vax Rule in Limbo: What to Do Now

Employers: Although the Supreme Court listened to arguments for 2 hours on Friday, the Court has not yet released an opinion about whether or not to stay the Occupational Safety and Health Administration's Vaccination and Testing Emergency Temporary Standard for employers with 100 or more employees. As the Court released many other opinions this morning, it appears the Justices are taking time to analyze this important issue. What does this mean for such employers during this limbo period?  OSHA has previously announced it will begin enforcing all but the COVID-19 testing requirement today January 10.

 This includes:

  •  maintaining a roster of each employee’s COVID-19 vaccination status,
  •  providing information to employees regarding the vaccine,
  •  ensuring all unvaccinated employees wear masks when present with others indoors or in a vehicle,
  •  providing paid time off for employees to get vaccinated and to recover from vaccine side effects,
  •  having a vax or vax/test policy ready to be implemented by February 9 and
  •   promptly removing employees who test positive from the workplace.

 OSHA has stated it expects "reasonable good faith” efforts to comply with these parts of the ETS but will hold off requiring employers to start weekly testing unvaccinated employees until February 9.

If this applies to your company and you haven't done anything yet to start to comply with this standard, you know where to find me. Regardless of your views on this Rule, at a minimum, the paid time requirements are already required under many local and state sick leave laws and it's hard to imagine employers are not already swiftly removing employees infected with COVID-19 from the workplace. If you also create a roster of employees' vaccination status and implement masking requirements for in-person work, that's several steps towards compliance and these last two can be beneficial steps to take even if the Court ultimately stays OSHA's ETS and your state does not require you to do so.

Here's why. If employees get COVID-19 or are exposed to COVID-19, the CDC recommends different quarantine and isolation requirements for the vaccinated and unvaccinated. Knowing which of your employees are vaccinated or unvaccinated will ensure you know what quarantine or isolation requirements to follow. Knowing employees’ vaccination status also could be useful if you have employees in the field who may encounter local and/or state vaccination and masking requirements as they travel for work and to use to make decisions about what kind of masking requirements to apply to in-person worksites if you have employees in a city or state without a mask mandate. 

With cases climbing, it’s worth tackling these issues.