When Must Employers Implement OSHA’s Emergency Temporary Standard?

November 6, 2021 by

When Must Employers Implement ETS Requirements? Implement Now. Implement Later. Wait, When?

Employment Compliance Plans for ETS Requirements Are a Must

Creation of an effective compliance plan for the multiple ETS requirements will require substantial costs to covered employers. A multitude of policies, procedures, processes and systems may have to be created to enhance prevention of workplace harm associated with COVID-19 and ensure systematic and behavioral compliance by employees. Once implemented, clearly communicating expectations to all employees, providing leadership staff with training on enforcement expectations, and ongoing assessment of what is working and what is not working is required.

Effective compliance plans address the following areas:

  • Who bears the responsibility of ensuring and proving (when requested by OSHA) compliance with the ETS requirements;
  • How frequently should compliance policies and procedures be reviewed and updated;
  • Discipline expectations for employees that run afoul of policies and procedures designed to ensure compliance with the ETS standards;
  • Access to policies and procedures relevant to employees, especially those in human resources and leadership likely tasked with ensuring compliance with ETS standards;

If covered employers are able to address each of these areas, liability is mitigated, covered employers are protected, and workplaces are protected. Covered employers must comply with many of the requirements within 30 days and begin required testing within 60 days of the November 5, 2021 ETS effective date. The expeditious nature of this effective date requires companies to determine whether or not it is in their business interest to either: (1) mandate vaccinations for all employees and design a compliance plan around that mandate; or (2) to implement a vaccination or testing option and design a compliance plan around that approach.

There are extraneous factors that many  covered employers must factor into their analysis concerning which policy to implement, given some of the threats against long-term enactment of the existing ETS’ mandate on vaccinations.

Pending Litigation Impacts on ETS

Pending and anticipated litigation is presently threatening the ETS. Almost immediately upon becoming effective, the U.S. Fifth Circuit Court of Appeals stayed the ETS vaccine mandate pending expedited judicial review. The Fifth Circuit litigation was instituted by staffing companies and later, the State of Texas filed its own motion to stay on November 7, 2021.

Despite the Fifth Circuit leading the way, other circuits also have pending litigation: the U.S. Sixth Circuit Court of Appeals is considering an emergency motion to stay filed by seven states – Kentucky, Ohio, Tennessee, Kansas, Idaho, Oklahoma and West Virginia; the Eleventh Circuit, is considering a petition for review filed by Florida, Alabama and Georgia, two private businesses, two private schools and two business associations; the U.S. Eighth Circuit Court of Appeals is considering a petition for review and motion to stay filed by Missouri, Arizona, Nebraska, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, Wyoming and various private businesses, as well as a Catholic school, a Christian employers organization and the Home School Legal Defense Association; and the U.S. Seventh Circuit Court of Appeals is considering a petition for review and motion to stay filed by two Wisconsin manufacturers and a similar suit filed by the State of Indiana.

The legal challenges go to the core of the 1970 OSHA Act and its applicability to healthcare decisions. The federal contentions include challenges that the ETS is an unconstitutional exercise of federal power by OSHA. Petitioners contend that the law vaguely defines the terms “grave danger,” “substance or agent,” and “new hazard” and that the nearly two-year-old hazards posed by the COVID-19 pandemic are not exclusively “occupational” hazards as required for jurisdiction by OSHA.

Employers, Decide Now.

Compliance with the ETS  has associated costs and efforts which may be significant to covered employers. Employers must decide now, as a policy matter, whether they intend to maintain a vaccine mandate in their workplace, despite legal outcomes associated with the ETS – this is a threshold question for covered employers – not controlled by the outcome of any litigation related to the ETS.

No matter the option a company takes, covered employers will still need to comply with the other recordkeeping, reporting, and training requirements in the ETS.

Lincoln Derr will continue to provide information and counsel related to notable developments. For now, covered employers should begin assessing their compliance obligations to meet the pending effective dates of the ETS. If you have any questions about this ETS or need assistance putting your compliance plan into place, please contact Gwendolyn W. Lewis.

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