Update: On Thursday, January 13th, the Supreme Court announced its decision to block the vaccine and testing mandate for large businesses, but allow the healthcare vaccine mandate to take effect for organizations that receive Medicare and Medicaid funding. Despite the mandate being stricken, we know that many local employers are taking their own steps to keep employees and customers safe during the pandemic. For more helpful guidance, check out ProService's Ultimate Guide to Vaccines & the Workplaces for policy and best practice tips.
On Friday, January 7th, the Supreme Court heard oral arguments for two vaccine mandates. One imposes a vaccine-or-test mandate for private sector companies that employ 100 or more workers (OSHA’s Vaccine Emergency Temporary Standard (“ETS”)). The other is a separate vaccine mandate (with no option for testing) for almost all workers at hospitals, nursing homes, and other medical providers receiving federal Medicare and Medicaid funds (Centers for Medicare & Medicaid Services)
While many believed that the courts would come to a decision over the weekend (before a portion of OSHA’s mandate took effect on January 10), the legal debate remains in the Supreme Court and no ruling has been announced. This means that a significant portion of OSHA’s Vaccine ETS is now in effect.
The Basics of OSHA’s ETS
As of January 10, private sector companies that employ 100 or more employees must do the following: 1) Create and implement a written policy on vaccines, testing, and face coverings, 2) Provide information to employees on vaccines and the requirements of the ETS, 3) Offer PTO (up to 4 hours) to employees to obtain the vaccine and reasonable time and paid sick leave to recover from side effects following each dose, 4) Obtain and maintain records of employee vaccination status, 5) Report to OSHA when there is an employee work-related COVID-19 fatality or hospitalization and other notification requirements.
On February 9, 2022, the vaccine and weekly testing portion of OSHA’s ETS will become effective, requiring employees to be fully vaccinated or test negative weekly for COVID-19.
If you employ 100 or more employees and operate in the 29 states (plus District of Columbia) in which Federal OSHA has jurisdiction, you must comply with the above portions of the ETS, beginning January 10.
For employers that operate solely in Hawaii or other State Plan states (where state government agencies enforce safety regulations, e.g., HIOSH), OSHA has given these agencies until January 24, 2022, to either adopt the federal ETS or offer alternative regulations. These alternative regulations cannot be less strict than the federal ETS, they can only be more strict. In a nutshell, if the Supreme Court upholds the legality of this mandate, the January 10 deadline does not apply to Hawaii employers but enforcement deadlines will be coming soon. Until then, take time to prepare yourself to take action if needed. Research your responsibilities as an employer by visiting osha.gov or cms.gov. Or, watch ProService Hawaii’s previously recorded webinar: Understanding Biden's New Vaccine Mandates.