Attorneys and consultants are warning the hundreds of thousands of employers covered by the Occupational Safety and Health Administration’s vaccination and testing Emergency Temporary Standard to be ready for inspections starting Jan. 10, 2022, according to Bloomberg Law.
Although OSHA will not require employers to have workers fully vaccinated or tested at least weekly until Feb. 9, 2022, it can start citing employers earlier for other violations of the COVID-19 ETS.
“If you are doing nothing to comply, you may be subject to a citation,” said former OSHA official Richard Fairfax.
The ETS requires most employers with 100 or more workers to implement a vaccination-or-testing mandate. OSHA has said it will not cite employers it believes are making a good-faith attempt to comply with the regulation by the deadlines.
Attorney Laura Lawless, a partner with Squire Patton Boggs, Phoenix, said she would expect OSHA inspectors in January to include reviews of large employers’ COVID-19 standard compliance efforts as a routine part of any inspection.
“At the very least, know who is vaccinated,” said attorney George Ingham, a partner with Hogan Lovells in Tysons, Va. “Have a plan in place ready to issue.”
The U.S. Court of Appeals for the 6th Circuit on Dec. 17 lifted a stay blocking the rule, freeing OSHA to begin enforcement. Shortly after the court’s announcement, OSHA said it would not issue citations before Jan. 10, 2022, and would not require compliance with the vaccination-or-testing mandate until Feb. 9, 2022.
States and business groups already have petitioned the U.S. Supreme Court to again halt the standard, but they likely will have to wait until January before a decision is made.
Ingham said employers in states where governments have passed bans on employer vaccination mandates still need to prepare for the federal standard’s implementation deadlines because OSHA believes its requirements take precedent over local and state requirements.
The ETS requires employers to develop, implement and enforce a mandatory COVID-19 vaccination policy or a policy requiring employees to choose either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.
Employers not enforcing OSHA’s newest rule could face a fine of up to $13,653 for each serious violation and a fine of up to $136,532 for a willful violation.
