OSHA Update on Vaccine Mandate

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Unvaccinated employees in large companies will have more time before they need to start testing regularly.

On the heels of the Decision of the 6th United States Court of Appeals in Cincinnati to lift the November injunction which had blocked employer-based COVID-19 vaccination and testing and Temporary Emergency Standard (ETS), the Occupational Health and Safety Administration hosted a briefing with stakeholders on the standard, which applies to companies with 100 or more employees. The briefing largely provided an overview of the ETS sections, the Retail Industry Leaders Association reported. A pre-recording of the briefing is available here and a copy of the slides are available here.

Amid legal challenges, OSHA issued a “Litigation UpdateTo its website giving employers more time to comply with the vaccination or testing requirements outlined in the ETS. RILA said the big takeaway from the update is that workers who aren’t vaccinated won’t have to start testing regularly until February 9.

At least eight applications have been filed with Judge Kavanaugh (the judge who oversees the Sixth Circuit) seeking to suspend the OSHA rule following the 6th Circuit ruling, according to the report. He set December 30 at 4 p.m. as the deadline for opposition documents, suggesting that the Supreme Court would not act on requests before that date.

Following OSHA prepared remarks, the agency responded to questions that arose during discussions with various RILA communities, including:

  • How would a testing shortage impact the application of testing requirements?
    The presenters responded that OSHA would seek documentation of an employer’s good faith efforts to obtain testing and exercise its discretion when an employer cannot secure an adequate supply of test kits for a given period of time.
  • Could an employee request a religious exemption from weekly testing?
    Yes it’s possible. If the worker’s religious belief is “sincere,” he may be entitled to accommodation for weekly testing. It is the employer’s responsibility to assess whether the religious belief is sincere. OSHA is asking employers to consult the EOCC for guidance on making this decision.

ohSHA also asked participants to review the Complete FAQ on his site, which he plans to update with additional FAQs in “the next few days”. Among the expected updates are additional testing of cost payment scenarios that OSHA / DOL has received questions about since the release of the ETS.


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