And Now We Wait …

By: Laura Caty & Lee Geiger

Oyez! Oyez! Oyez! This honorable Court is now in session. Starting at 10 AM this morning, the United States Supreme Court heard oral arguments regarding the contentious Occupational Safety and Health Administration (OSHA)’s Emergency Temporary Standard (ETS). The argument lasted more than two hours. As of the time writing this blog at 1:00 PM, the Supreme Court has not issued a decision.

Here’s what we know:

Unless a decision is made today or over the weekend, OSHA’s ETS will go into effect on Monday January 10th. Employers covered by the OSHA ETS (i.e., those with over 100 employees who are not covered by the CMS or federal contractor mandates) will be required to do the following:

  • Have implemented a written mandatory vaccine or test policy for employees;
  • Have collected proof of vaccination for vaccinated employees (in most cases this will be the CDC card);
  • Employees who are not fully vaccinated (two weeks after the final shot) must wear an OSHA-compliant mask in the workplace;
  • Provide up to 4 hours of pay, at the employee’s regular rate of pay, to those employees who are not fully vaccinated, but will use that time during work hours to get vaccinated;
  • Provide reasonable paid time off to employees to recover from any side effects experienced following a primary vaccination dose.

If you find yourself scrambling this weekend to get your ducks in a row, don’t panic. A stay could be put in place this weekend preventing the OSHA ETS from going into effect on Monday. If there is no news this weekend, also don’t panic if your company is not fully compliant on Monday morning. We are not aware of many businesses who will be fully compliant. Unlike the Supreme Court clerks, to whom the justices claimed have been “busy beavers” preparing for the arguments today, most HR departments have other work to do in addition to complying with this on again, off again regulation. It is unlikely that OSHA will come knocking on Monday. Even if they do, OSHA jail is not big enough for everyone!

The key is to demonstrate that you are making a good faith effort to comply. If you don’t have confirmed vaccination statuses by Monday, a simple step is to require masking for all employees who have not submitted proof of vaccination. That also provides incentive for people to provide proof. If you don’t have a policy, get one ASAP. If you need help with a policy, let us know. We can help.

Stressed about the testing requirements under OSHA? You are in good company with the rest of the country. Take a deep breath. The testing component will not go into effect until February 9. It’s likely to change multiple times between now and then. After the Supreme Court gives more guidance, we’ll provide an update and tips on testing. Until then, focus on the steps above.

If you have questions, give us a call. Our Labor & Employment team is also full of busy beavers and can help when needed – even if over the weekend.

Our Graydon team will be monitoring the Supreme Court and will relay any update as soon as we know.

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