Legal Alert: Federal Vaccine Regulations Effective November 5, 2021
The Occupational Safety and Health Administration is proposing an Emergency Technical Standard or “ETS” generally requiring employers of 100 or more employees to develop, implement and enforce a COVID-19 vaccination policy and/or enforce a policy of allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the work place.
As of this writing, the ETS had not yet been published in the Federal Register. A link to the Federal Register where the regulation will be published is here.
Immediately upon publication in the Federal Register, the Emergency Technical Standard will be effective. OSHA has developed summary to describing the ETS which is available here.
Much of the early reporting about the standard has emphasized the fact that employers have until January 4 to comply. However, that is not fully accurate. According to OSHA’s summary, that delayed compliance is only for testing for employees who have not received all doses for a primary vaccination. Employers will only have 30 days after publication to comply with all requirements other than testing employees who have not completed their entire primary vaccination doses.
Without limitation, those will include developing, implementing and enforcing the required COVID-19 vaccination policy, determination of employee vaccine status, providing paid time off work for vaccine administration and recovery, posting government mandated notices and record keeping requirements.
The full scope of the regulations are onerous and employers only have a short time to begin implementation. Since this is an Emergency Technical Standard, it was passed without following the process for a normal regulation. There will be a 60 day window for challenges to the ETS and stay can be issued by a court of competent jurisdiction.
Governor Holcomb has directed the Indiana Department of Labor to work with the Indiana Attorney General on a lawsuit challenging the federal regulation. Attorneys General from other states are also likely to file lawsuits as well. Twenty-four of those Attorneys General directed a correspondence to the administration outlining their position as to the illegality of the ETS. That letter is available here.
While these lawsuits may seek stays of the ETS, as of this writing the ETS had not yet been stayed. With the 30 day compliance window looming, many businesses may need to begin to work to toward compliance by the end of that window. Employers could face significant fines for failure to comply.