Bottom line: Large companies must comply with OSHA’s Covid-19 ETS... for now

By Jenny LescohierJanuary 12, 2022

Covered employers must prepare a written Covid-19 vaccine-or-testing policy

The U.S. Supreme Court has not yet ruled on OSHA’s Covid-19 Emergency Temporary Standard (ETS), which would require full vaccination or weekly testing for employees of company’s of 100 or more, but the standard is currently in effect. 

The ETS went into effect on January 10. In addition to the above requirements, it also stipulates that unvaccinated employees at companies with 100 or more employees are required to wear masks at work.

Testing requirements and potential fines for employers don’t kick in until Feb. 9.

The ETS requires covered employers to prepare a written Covid-19 vaccine-or-testing policy. Businesses also must ask about the vaccination status of each employee, obtain acceptable proof of vaccination, and maintain a list of employees and their vaccination statuses, according to the Society for Human Resource Management.

SHRM reported the federal government argued before the high court on Jan. 7 that Congress gave OSHA the power to take emergency action, and that even a brief administrative stay while the court considers the arguments could have significant consequences as Covid-19 cases and hospitalizations continue to surge.

If the Supreme Court does not block the ETS, employers who have not started to implement the directive leave themselves open to OSHA citations and fines.

If the Supreme Court does block the ETS, OSHA will continue to issue guidance and citations for employers who fail to implement health and safety measures related to Covid-19, such as maintaining proper cleaning procedures and following isolation and quarantine guidelines.

Individual state OSHA plans will also continue to enforce Covid-19 standards within their jurisdictions.

Ian Carleton Schaefer, an attorney with Loeb & Loeb in New York City, told SHRM he expects some sort of ruling by no later than the Feb. 9 testing deadline, if not sooner.

For now, those with questions about how to comply with the ETS should click here.

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