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Right before Christmas, the U.S. Supreme Court accepted review of the challenges to both OSHA鈥檚 Emergency Temporary Standard (ETS) and the Centers for Medicare and Medicaid Services鈥� (CMS) health care mandate, and announced that oral arguments will be held for both cases on Jan. 7, 2022. So what should employers do in the meantime? Simply make a New Year鈥檚 resolution that you can keep. To help facilitate compliance, I have outlined a five-step survival guide for employers subject to either the OSHA ETS or the CMS mandate.

Overview and recap

Before we know where we are going, we must know where we came from. To that end, there are two rules at play here: a general ETS issued by OSHA that covers employers with more than 100 workers, and the CMS鈥� health care mandate that is specific to the health care industry. Whereas OSHA鈥檚 general ETS provides an option for employers to test employees for COVID-19 at least weekly in lieu of mandating the vaccine, the CMS mandate does not allow for a testing option and requires a vaccination policy. Following is a look at the ETS.

The OSHA ETS

After workplace safety officials at the Occupational Safety and Health Administration (OSHA) unveiled the mandate-or-test ETS on Nov. 4, many groups filed actions in several federal courts to block it. The conservative Fifth Circuit Court of Appeals was the first to act by issuing a temporary 鈥渟tay鈥� that preliminarily blocked the ETS. This was followed by a Nov. 12 extension of that stay that ordered OSHA to take no steps to implement or enforce the ETS.

But the Judicial Panel on Multidistrict Litigation announced on Nov. 16 that it would consolidate all of the legal challenges and send them to the conservative Sixth Circuit Court of Appeals to decide the outcome of the rule. Then, on Dec. 17, a surprise decision from a three-judge panel of the Sixth Circuit once again jolted employers back into scramble mode: The court dissolved the stay and cleared OSHA to enforce the ETS across the country.

Subsequently, the Supreme Court accepted review and set oral arguments for Jan. 7, 2022. By setting the oral argument for Jan. 7, the court has essentially forced employers to invest time and resources in preparing their compliance efforts. In the case of the general OSHA ETS, the first compliance deadline is Jan. 10 鈥� and employers not preparing in 鈥済ood faith鈥� could actually feel an enforcement sting before that date, according to recent guidance from OSHA. Of course, there鈥檚 no telling when the court will rule on the ETS, but even if it issued a decision immediately after oral arguments, that would leave precious little time for employers to comply and demonstrate good faith before Jan. 10, so employers need to prepare now.

Five-step survival guide

That begs the question: What does preparing in 鈥済ood faith鈥� mean? This five-step plan will help employers demonstrate reasonable good faith efforts to comply between now and Jan. 10:

1. Determine if you are covered by the ETS. Work with your workplace safety counsel to answer the following questions: Is your workplace covered by OSHA normally? If so, do you have more than 100 employees nationwide? Or are you exempt because you are covered by either the health care COVID-19 ETS or federal contractor mandate? (See below for more on this.)
2. If you are covered, gather vaccine status information on your workforce and develop the required vaccination roster for employees, noting whether or not they are fully vaccinated as defined under the ETS. This information (the percentage of vaccinated workers) will allow you to determine if you will mandate vaccines or conduct testing under the ETS.
3. Depending on your decision, develop the required mandatory vaccine and/or testing/masking policies required under the ETS 鈥� and make sure they are adapted to your own unique workplace. While you don鈥檛 necessarily need to implement these policies before Jan. 10, you should be ready to implement them as soon as possible and be prepared to demonstrate good faith efforts to put them into place. Of course, if your organization has low risk tolerance, you could proceed with implementing the policies before Jan. 10. Employers in OSHA 鈥渟tate plan鈥� states face the further complication of needing to wait for states to adopt the ETS; OSHA told state plans that they will need to act by Jan. 24 to adopt the ETS or otherwise ensure that their state plans are 鈥渁s effective鈥� as the federal rule. The ETS will generally not be effective in state plan states until they do so.
4. Develop programs that would allow you to conduct compliance training for your managers and deliver information about your policies to your employees as required under the ETS. You may want to conduct this training and start your informational campaign before the Jan. 10 deadline to further demonstrate your good faith efforts.
5. If you decide to provide the COVID-19 testing option, then in addition to implementing the above requirements by Jan. 10 you should be prepared to have unvaccinated employees demonstrate proof of a negative test as of Feb. 9.

Be sure to reach out to counsel if you have questions about how to ensure that your vaccine policies comply with workplace laws and other applicable ones.

Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers鈥� interests in all aspects of workplace law. Contact him at 503-205-8094 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91视频 guarantees the accuracy or completeness of any information published herein.