This article appeared as a Guest Column in The Journal Record on January 6, 2022.
On Friday, Jan. 7, the U.S. Supreme Court will hear oral arguments about whether the Occupational Safety and Health Administration vaccine mandate, known as the Vaccination and Testing Emergency Temporary Standard, is constitutional. The previously issued stay of the mandates was lifted by the 6th U.S. Circuit Court of Appeals on Dec. 17 and is no longer in effect. This means the mandate is currently applicable until the Supreme Court rules otherwise.
OSHA will not start issuing citations for violations of the vaccination mandate until Jan. 10, and for violations of the testing and masking rules on Feb. 22, provided in the meantime, employers are making good faith efforts to come into compliance.
The details of the OSHA requirements and a sample compliant vaccine policies can be found at osha.gov/coronavirus/ets2.
Until we have a Supreme Court ruling, the current basics of the mandate are:
- The mandates apply to companies with 100 employees or more.
- Those employers must poll their employees regarding vaccine status, obtain and keep proof of vaccination and a roster of employees’ vaccination status.
- Employers must establish a deadline for employees to be vaccinated and provide up to four hours paid time off to obtain vaccinations, if necessary. Employers must also provide paid time off to recover from the side effects of the vaccination, if necessary.
- A person is considered fully vaccinated when they are two weeks post the Johnson & Johnson vaccination or two weeks post the second Moderna or Pfizer vaccination.
- Employees may request an accommodation or exemption for medical reasons, disability and/or religious accommodations, and each request should be assessed carefully.
- For employees who are not fully vaccinated, mandatory mask policies for the workplace and if they are riding in a car for work reasons with a co-worker.
- Employees who are not fully vaccinated and are present in the workplace also must be tested for COVID weekly.
- Employers must either pay for third-party testing or implement workplace testing using kits, including consideration for health privacy, also with the costs paid for by the employer.
Given OSHA will begin enforcement of the mandates next week, prudent employers should not wait on the Supreme Court’s ruling before beginning to implement these practices now.
Kathryn Terry is an attorney with the law firm of Phillips Murrah who specializes in employment and insurance law.
For more information on this alert and its impact on your business, please call 405.552.2452 or email Kathryn D. Terry.
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