On November 5, 2021, the Occupational Health and Safety Administration (OSHA) issued an Emergency Temporary Standard (ETS) concerning employer mandates for COVID-19 vaccines. The ETS establishes minimum requirements for employer policies on COVID-19 related issues for employers with 100 or more employees, with some exceptions. Essentially, the rules require that employees either are fully vaccinated or wear a mask and submit to weekly COVID-19 testing. In addition, the ETS requires unvaccinated workers to begin wearing masks in the workplace as of January 10, 2022, and to begin providing weekly negative COVID-19 test results as of February 9, 2022.
Responsibility for the Costs of Weekly COVID-19 Testing
The ETS does not require employers to cover the costs of face masks or weekly COVID-19 testing. However, Oklahoma’s Protection of Labor Act, Title 40 O.S. Section 191, prohibits employers from requiring job applicants or employees to pay for mandatory physical or medical examinations. Weekly COVID-19 testing, according to the OSHA ETS, does qualify as a mandatory medical test. As a result, Oklahoma employers should understand that they likely are solely responsible for the costs of weekly COVID -19 testing for their affected employees under state law.
Development of COVID-19 Vaccine Policies by Employers
As employers begin to formulate their COVID-19 vaccine policies for the workplace, they must consider the economic impact of the policy they develop. Employers with a large workforce and a large number of unvaccinated workers may be responsible for the costs of weekly COVID-19 testing for an undetermined period. Under the Occupational Health and Safety Act, an ETS may remain in effect only for six months. After six months have elapsed, OSHA must replace the ETS with a permanent standard. As a result, employers can anticipate that they would be responsible for the costs of weekly testing for employees for up to six months, and perhaps longer.
Future of the OSHA COVID-19 Vaccine Mandate
Various groups have filed suit to stop the implementation of the OSHA ETS concerning COVID-19 vaccines. The Fifth U.S. Circuit Court of Appeals had issued a decision blocking implementation of the rule nationwide. Most recently, however, the Judicial Panel on Multidistrict Litigation consolidated all pending suits concerning the legality of the OSHA ETS, including the Fifth Circuit’s ruling, before the U.S. Sixth Circuit Court of Appeals. The Sixth Circuit then dissolved the nationwide stay on implementation of the OSHA ETS as of December 17, 2021.
Given the conflicting decisions by lower courts concerning the legality of the vaccine mandate, the U.S. Supreme Court has agreed to consider the issue. In fact, the high Court will bypass its usual procedures and will hear oral arguments in the case on January 7, 2022. Not only is the large company vaccine requirement at issue, but the Court also will consider the legality of the vaccine mandates that apply to certain health care workers or those who work in facilities that participate in the Medicaid and Medicare programs.
For now, the Court is leaving the OSHA ETS in place. The Biden administration has relaxed the original timeframes for enforcing the rules to allow the court challenges to play out fully. The government also announced that it would not enforce the health care worker mandate until appeals resolved its legality.
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