The OSHA vax/test mandate is back, now what

By: Travis Rhoden

Publication: Workplace Safety Regulatory Alert

Date Posted: 12/21/2021

OSHA’s Test or Vaccine Mandate: Where it currently stands after legal challenges

Now that the 6th Circuit lifted the stay on the OSHA Emergency Temporary Standard on Vaccination and Testing, employers with 100 or more employees need to move quickly. Those that have been making reasonable, good faith efforts toward compliance have only until January 10 without worry of being issued a citation – February 9 for the testing requirements.

Those that have not been making such compliance efforts might not be afforded the extra time and could face citations regardless of the new dates.

Besides the short time frame, another issue facing employers who choose to allow testing in lieu of or for reasonable accommodations for vaccinations is the shortage of testing supplies. Again, those good faith efforts could go a long way, given the surge of omicron cases and the test shortage.

OSHA’s mandate is not yet out of the woods. Many groups petitioned that it again be stayed until the Supreme Court can weigh in. Petitioners have, however, until December 30 to file, so until then at least, the mandate will be effective.

The mandate has several requirements, such as:

  • Having and communicating a related policy,
  • Identifying a way to determine employee vaccination status,
  • Setting up for weekly testing (if allowing it),
  • Providing paid time off to get vaccinated and deal with side effects,
  • Making sure employees with symptoms are removed from the workplace,
  • Ensuring unvaccinated employees wear face coverings,
  • Providing employees with vaccine-related information, and
  • Providing information to OSHA and employees upon request.

The devil can be in the details that OSHA does not cover, such as how to set up a way to have employees test weekly, or how to identify a fake vaccination card. For employers who did not take a wait-and-see position when the mandate was first challenged, all this might be covered already. Otherwise, some employers could risk having OSHA knocking at their door.

Don’t forget that employees may request exceptions to the mandate, particularly the vaccine part, for medical or religious reasons. All this can use up precious company resources.