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A U.S. federal appeals court issued a stay of the U.S. Department of Labor’s Occupational Safety and Health Administration’s (OSHA) newly announced emergency temporary standard (ETS) requiring businesses with more than 100 employees to ensure their staff receive the COVID vaccine.

According to OSHA, the new standard, announced on Nov. 4, will protect more than 84 million workers from the spread of COVID-19 on the job by requiring mandatory COVID-19 vaccination or regular testing along with mask-wearing for workers who choose not to receive a vaccine.

According to the U.S. 5th Circuit Court of Appeals in New Orleans, the new standard is a massive overreach of government power into the private sector that “raises grave statutory and constitutional issues.”

According to Jonathan T. Hyman, an employment law attorney with Wickens Herzer Panza and author of the Ohio Employer Law Blog, companies should prepare to comply regardless of the legal confusion.

“Employers must act as if this ETS is still in effect and the Jan. 4, 2022 deadline for employees to be fully vaccinated or start weekly testing is a real and hard deadline,” said Hyman. “First and foremost, we don’t know if the 5th Circuit’s stay operates nationally or if it’s limited to the states within that Circuit — Texas, Louisiana and Mississippi.”

Legal Action on OSHA Vaccine Mandate Set to Continue

There are a number of pending suits regarding the ETS in the states, and another court could step in and rule contrarily to the 5th Circuit, which is considered the most conservative of the 12 appellate circuits, Hyman said. 

“Unless and until the Supreme Court says otherwise, employers should assume this is in effect and act accordingly,” he said.

OSHA estimates that the new rule, if implemented, will save thousands of lives and prevent more than 250,000 hospitalizations due to workplace exposure to COVID-19 over the course of the emergency temporary standard.

“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” said U.S. Labor Secretary Marty Walsh in a press release announcing the new rule. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19. Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.”

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How Businesses Will Need to Comply

The emergency temporary standard applies to businesses with 100 or more employees, and provides options for compliance. It also requires employers to provide paid time off to workers to get vaccinated and to allow for paid leave to recover from any side effects.

Along with those requirements, the standard also moves to determine the vaccination status of every employee through acceptable proof of vaccination status. It also requires employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status, and not allow them to return until they meet required criteria.

If a worker is not fully vaccinated against COVID-19, they must be tested at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer). Employees who are not fully vaccinated must also wear a face covering when indoors or when occupying a vehicle with another person for work purposes.

“While vaccination remains the most effective and efficient defense against COVID-19, this emergency temporary standard will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus,” said Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick in a press statement. “As part of OSHA's mission to protect the safety and health of workers, this rule will provide a roadmap to help businesses keep their workers safe.”

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COVID and Workplace Preparation

The ETS covers two-thirds of the nation's private-sector workforce. In the 26 states and two territories with OSHA State Plans, the standard will also cover public sector workers employed by state and local governments, including educators and school staff. For employers, that means they need to develop the infrastructure, policies and procedures to address requests for medical or religious exemptions and decide whether to offer testing as an alternative to vaccination, said Jeff Levin-Scherz, M.D., population health leader at the benefits consulting firm Willis Towers Watson.

“It’s likely that the court challenges will take a number of weeks to be resolved, and employers should continue their preparation for compliance in case the Emergency Temporary Standard is allowed to proceed," Levin-Scherz said.

Regardless of the legal action, many companies already put mandates in place before the ETS to reduce the risk of workplace transmission and related absences, Levin-Scherz said.

"COVID vaccination remains a crucial component in efforts to get the pandemic under control," he said. "Employers can continue their important efforts to make it easy for employees to be vaccinated, including time off for vaccination or adverse effect, communication and on-site vaccination.”