The Supreme Court blocked The Occupational Safety and Health Association’s (OSHA) Emergency Temporary Standard’s (ETS) mandated vaccine or test from being enforced last week. However, this does not mean the ETS has disappeared.
Technically, the Supreme Court didn’t kill the ETS for good.
Instead, the Supreme Court implemented a temporary injunction that once again blocks OSHA from enforcing the ETS. Now, for the time being, the parties (pro mandate and con mandate) will battle in lower courts over whether the emergency ETS is valid. The following are a few ways the ETS could come back to life:
- There is a chance that the Sixth Circuit Court of appeals – which will take the case from here – could determine that the ETS is valid and breathe new life into it in the coming weeks or months. Even if this occurs, the ETS will face an uphill battle to survive a challenge.
- OSHA’s ETS was designed to remain in place for six months, after which it must be replaced by a permanent standard. If OSHA wants to continue this particular fight, stay tuned for a formal rulemaking process that could see a formal regulation published on or before May 5.
We still suggest having a game plan in place should the “stay” be lifted and allowed to proceed. States and employers still retain the right to mandate vaccines or testing.
The Supreme Court did allow the vaccine mandate for certain health care workers to be implemented.
If you are subject to the Centers for Medicare & Medicaid Services (CMS) healthcare mandate, the following five steps are critical parts of a successful plan:
- Safeguard Information. Adopt systems and procedures to determine and safeguard all information regarding employees’ vaccination status.
- Communicate Policies. Communicate applicable policies and procedures to everyone who may work on-site, including but not limited to the particulars of your vaccine requirement and the process for requesting exemptions.
- Accommodation Requests. Develop a non-discriminatory, streamlined process to handle vaccine accommodation requests.
- Accommodation Precautions. Review and confirm additional COVID-19 precautions that apply to individuals who are granted accommodations.
- Prepare for Pushback. Prepare to respond to some inevitable pushback and complaints, as well as likely on-site CMS inspections, by communicating clearly and maintaining detailed records of your processes.
501(c) HR Services is in the process of creating sample policies and additional information to assist you with complying with issues surrounding getting your staff back to work with COVID-19.
We’d like to say thank you to our friends from Fisher Phillips for the above information.
501(c) Agencies Trust members have unlimited access to HR Services. Contact us anytime regarding this subject or any other HR situations.
The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.
