NEWS: Earlier this month, the federal Occupational Safety and Health Administration (OSHA) published its “emergency temporary standard” (ETS), setting new COVID-19 vaccination and testing mandates for businesses with 100 or more employees. The League wrote about it in this Nov. 4 Compliance Courier, which explains that under the ETS, all employers of 100 or more employees will have to require their employees to be either fully vaccinated or subject to weekly COVID-19 testing. While the testing requirement for unvaccinated workers will begin January 4th, employers must comply with all other requirements in the ETS – such as providing paid-time for employees to get vaccinated and requiring masks for unvaccinated workers – on Dec. 5th.
The rules have been challenged in court, and the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay the ETS on Nov. 12. On Wednesday, OSHA stated on its website that it would comply with the court order and “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
Additionally, dozens of lawsuits that were filed challenging the ETS will now be consolidated under the Sixth Circuit Court of Appeals following a random drawing. The Sixth Circuit will hear the consolidated action and can either uphold or lift the Fifth Circuit’s order. Ultimately, it is expected the U.S. Supreme Court will determine the fate of the OSHA rules.
What should credit unions with 100 or more employees do now? According to one prominent Wisconsin law firm, Godfrey & Kahn, the prudent course may be to continue planning for implementation but stay flexible:
While OSHA is currently restrained from enforcing the ETS, there is still more legal wrangling to come which could result in the stay being lifted. As a result, the prudent action for employers is to continue planning for implementation of OSHA’s ETS by the Dec. 5, 2021, deadline. Such steps include determining your employees’ vaccination status and whether or not you plan to allow the testing option and, if so, how testing will be conducted and who will pay for it.
If the Fifth Circuit’s stay is still in place on Dec. 5, 2021, the deadline for compliance with the initial requirements of the ETS, an employer might reasonably consider delaying implementation at that time, especially if it believes that implementation will hurt the business due to employee resignations. For now, businesses should prepare to comply, but remain flexible as the legal landscape can change quickly.