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Take Your Best Shot: Vaccination and Testing Mandates for the Workplace

December 23, 2021

After the federal Occupational Safety and Health Administration ("OSHA") issued its COVID-19 Vaccination and Testing Emergency Temporary Standard ("ETS") requiring vaccine mandates for employers with 100 or more employees in November 2021, the Fifth Circuit issued a stay putting a stop to the enforcement of the mandate.

On December 17, 2021, the Sixth Circuit Court of Appeals dissolved that stay and OSHA immediately posted new compliance dates requiring employers with over 100 employees to comply with the provisions of the ETS by January 10, 2022. Any employer opting to permit employees to test instead of vaccinate must begin testing on or before February 9, 2022. To no surprise, petitions have already been filed with the U.S. Supreme Court seeking an emergency stay of the ETS. This vaccine mandate tennis match is not over yet.

As of now, compliance for large employers includes some of the following: (1) having a vaccination policy; (2) obtaining vaccination status from all employees and maintaining records and a roster of vaccination status (3) providing specific information to all employees about the new requirements and protection against retaliation and discrimination and information about knowingly supplying false statements or documentation; (4) requiring face coverings for unvaccinated employees; and (5) providing paid sick leave to get vaccinated and recover from side effects.

While employers may want to take a "wait and see" approach, companies should think about what it will take to comply with the ETS requirements. OSHA has already stated that it will use enforcement discretion for employers attempting to comply with the ETS in good faith. Employers should contemplate company values and the impact of those values on compliance with the ETS, consider how it will communicate changes in policy, and create policies and procedures regarding implementation and recordkeeping. These are all good initial steps towards compliance as the January 10, 2022 deadline will come up very quickly.

Companies that fail to comply may be subject to fines with the amount depending on how frequent the violation and whether they were intentional. Employers can face fines of up to $13,653 per violation for every serious violation.

The ball is now in the court of the U.S. Supreme Court as employers anxiously await its decision.