Big Employer “Vaccinate or Test” Rule Back in Place – at Least for Now

Big Employer “Vaccinate…

Last November, the federal Occupational Safety and Health Administration (OSHA) announced its Emergency Temporary Standard that would require employers with 100 or more employees to implement a mandatory workplace rule that employees either be vaccinated against COVID 19 or submit to regular testing requirements. After several setbacks, OSHA got a win last week when a split panel (voting 2 to 1) of the United States Court of Appeals for the Sixth Circuit overturned an existing injunction, ruling that the emergency standard can proceed.

OSHA quickly announced extended compliance deadlines. Specifically, vaccine verification procedures and masking rules for the unvaccinated must be in place by January 10, 2022. Large employers will have a bit more time … until February 9 … to implement fully their testing procedures, so long as they make reasonable, good faith progress toward compliance between now and then.

Most experts expect the United States Supreme Court to weigh in on the OSHA mandate prior to the upcoming January 10 deadline. The challenge for employers, of course, is the risk that the Supreme Court does not in fact become involved, or that it affirms the Sixth Circuit’s decision, leaving the unprepared employer flat-footed in the face of the looming deadline.

The best advice is to “hope for the best, plan for the worst.” Regardless of your personal views on the topic, you will be wise to understand the OSHA temporary standard and consider whether it applies to your workplace. If it does, what will you need to do to comply with it?

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