This past Friday, the Sixth Circuit Court ordered the stay on OSHA’s Emergency Temporary Standard (ETS) to be vacated. OSHA’s website now states:
“To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
To clarify, OSHA will not issue citations for non-compliance related to the ETS before January 10, nor before February 9 for non-compliance with the testing requirements. Although Biden has previously commented about extending the ETS requirements to all employers, currently, only companies with 100 employees or more must comply.
Multiple parties, including states, organizations, and employers, have filed emergency applications to the U.S. Supreme Court to reinstate the stay.
Washington is a fully delegated state; accordingly, OSHA does not enforce in the State—it must be enacted by rule or legislation in Washington and enforced by L&I. Accordingly, the State could modify OSHA’s ETS in emergency rules to implement the ETS. That is why WR communicated very early to Governor’s Inslee’s team urging 1) to not lower the number of employees threshold, 2) retain the testing options, and 3) to adhere to the timelines in the ETS, which were not scheduled to take effect until after the Holiday season.
Even in the face of more aggressive COVID-19 variants, such as omicron, opponents of the vaccine rule haven’t changed their position. Among the trade groups who’ve filed petitions to the U.S. Supreme Court is the National Retail Foundation (NRF), which isn’t opposed to the vaccine mandate but wants its members to have more time to carry out the order.
Employers are “totally confused,” according to a New York Times article published on Monday of this week. While many employers are frantically working to enforce Biden’s order on their employees, others, such as Boeing, have dropped the requirement. Legal battles, changing deadlines, and spiking COVID case numbers aren’t helping.
Uncertainties abound for employers, including what next steps will President Biden or Governor Inslee impose on employers and employees? Is the mandating of subsequent vaccine boosters next, and will employers be again policing their workforce? Will the meaning of being fully vaccinated be redefined? Washington Retail Association will remain engaged on this important issue. Stay tuned