Last week we reported that the United States Court of Appeals for the Fifth Circuit – which covers Texas – temporarily stayed the Emergency Temporary Standard (ETS) issued by OSHA requiring employers with 100 or more employees to mandate COVID-19 vaccination or weekly testing.  Late Friday, the Fifth Circuit issued a more long-lasting stay of the ETS.  If it remains in place, we do not believe that the ETS will take effect on December 6, 2021, the current deadline for most of its requirements. That being said, the stay does not apply outside of Texas, Louisiana or Mississippi.  It can also be vacated, and perhaps will be vacated as soon as later this week.

Interestingly, OSHA has announced that in light of the Fifth Circuit’s stay, it “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

So what should a prudent employer do?  In short, we recommend that you continue to take the steps necessary to comply with the ETS as if it will go into effect.  Under the ETS, on December 6, among other things, covered employers must have an employee vaccination status roster and have collected proof of vaccination.  They must also have a vaccination policy in place, which must include among other things, requirements for COVID-19 vaccination; applicable exclusions from the written policy (e.g., medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs); information on determining an employee’s vaccination status and how this information will be collected; paid time and sick leave for vaccination purposes; notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace; information to be provided to employees; and disciplinary action for employees who do not abide by the policy.

In other words, while you can keep one eye as to when the ETS will go into effect – if ever – you should prepare as if it will still go into effect on December 6.  With the upcoming Thanksgiving holiday, the deadline is just around the corner.

Please let us know if we can help.  In the meantime, stay safe and keep the course.

Thanks, Jack, Elizabeth and Jim

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