By John Holevoet DBA director of government affairs
The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) that would require employers with 100 or more employees to mandate COVID-19 vaccinations for most employees (with a handful of exceptions). This proposed new rule met many legal challenges from across the country, resulting in a lot of confusion about how employers should prepare, if at all, for the ETS and its initial deadline for action of Dec. 6.
Here’s our attempt to breakdown what has been happening and what it means for your farm or business:
If you don’t have 100 employees, the rule does not apply to you. If you think you might have 100 qualifying employees, but you have questions about how OSHA expects the total employee number to be calculated, you should check out section two of OSHA’s FAQs for more information.
When a rule like this is challenged in federal court, the cases will ultimately end up at different Federal Circuit Courts. These are regional courts, and the case is assigned to the circuit court for its region. The 5th Circuit (based in New Orleans) issued a temporary stay on Nov. 6 to keep the ETS from going into effect while the court decides its legality. It reaffirmed its stay on Nov. 12. In response, OSHA suspended all efforts to implement or enforce the ETS.
When something is being challenged in multiple circuit courts, like the ETS is, there’s a lottery to determine which circuit gets to hear those challenges. On Nov. 16, the lottery selected the 6th Circuit (based in Cincinnati) to hear the case regarding the future of the ETS. (This conservative-leaning circuit is made up of judges primarily appointed by Republican presidents, though it is not typically considered as conservative as the 5th circuit.) We will all have to wait to hear what the 6th Circuit decides to do.
This leaves employers with 100 or more employees in a legal limbo. The ETS has commonly been referred to as the vaccine mandate, but it has several other requirements for covered employers. At a minimum, covered employers should familiarize themselves with the requirements they would face if the ETS is upheld. This OSHA factsheet goes through them.
If it ever goes into effect (and right now that is very much in question), the ETS would require employers with 100 employees or more to have a written policy regarding its implementation and to determine employee’s vaccine status, as unvaccinated workers would be required to wear a mask in the workplace and submit to periodic testing. Some employers may want to begin taking steps to prepare for implementation should the courts ultimately uphold the ETS.
DBA member, Michael Best, is offering a package of sample materials to make preparing for the possibility of implementation easier. You can learn more about their offerings in this brochure. The cost is normally $750, but DBA members qualify for a $250 discount. You can purchase the compliance guide here and use the code DFGuide2021 to receive your DBA member discount at checkout.
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