An Update on OSHA’s Vaccine or Testing Mandate

As a bit of background, on November 5, 2021, the Occupational Safety and Health Administration (OSHA) published an emergency temporary standard (ETS) that creates binding requirements for employers of 100 or more employees, which includes many of our member banks. In OSHA’s own words, the ETS is intended to “protect unvaccinated employees . . . from the risk of contracting COVID-19 in the workplace.” 

The ETS became effective immediately upon publication. Employers were originally required to comply with the requirement to request proof of vaccination status from employees by December 6, 2021. For employees who are not fully vaccinated, testing was originally required to begin by January 4, 2022. 

As you might expect from these strict requirements and the short timeline, there was quite a bit of pushback. Just a day after the ETS was published, the Court of Appeals for the Fifth Circuit issued an administrative stay of enforcement, which effectively caused OSHA to pause implementation and enforcement of the ETS until further notice. 

Because so many lawsuits were filed across the country, a lottery system was eventually used to determine which case challenging the ETS would be the case that the court would end up hearing. Ultimately, the Court of Appeals for the Sixth Circuit, which is based in Cincinnati, OH, won the lottery. 

Shortly after, the Sixth Circuit lifted the stay which put the ETS back into effect. Because of the delay, however, OSHA published on its website that the original compliance dates would be shifted to January 10, 2022 for the proof of vaccination status requirement and February 9, 2022 for mandatory testing requirement for unvaccinated employees. 

In yet another recent development, the U.S. Supreme Court announced on the night of December 22, 2021 that it would hold an emergency hearing on January 7, 2022 to review the OSHA ETS (in addition to separate a vaccination mandate for health-care workers). 

As of the date of this writing, the OSHA ETS remains in effect subject to the revised dates noted above. It is unclear at this time what the outcome of the Supreme Court’s decision will be, but in the meantime, it has declined to put in place any temporary stay on the ETS until it hears arguments as scheduled on January 7th. 

Banks should certainly take this into consideration in determining the extent to which it should be preparing for the possibility of having to comply with the vaccination or testing requirements. Some questions that the Bank may want to consider include: 

  • What is the Bank’s strategic plan if the ETS were to remain in effect? 
  • Who is leading this effort at the Bank? HR? Legal? Other?
  • Which employees of the Bank would fall under the requirements? 
  • Will the Bank allow testing? If so, will the Bank pay for it?
  • What will the Bank’s approach be for employees who do not want to get vaccinated or be subject to testing? 
  • What about employees who agree but skip a testing day? 
  • How will the Bank document testing status? 
  • How will it ensure proper confidentiality? 

Compliance Alliance will continue to provide relevant updates as they arise. For any additional questions on the OSHA emergency temporary standard, feel free to contact us on the Hotline.