Vaccinate or Test Mandate is Back – For Now

December 20, 2021

On December 17, 2021, the 6th Circuit Court of Appeals lifted the stay on the federal Occupational Safety and Health Administration (“OSHA”) rule requiring employers with 100+ employees to ensure workers are vaccinated against the coronavirus or undergo weekly COVID-19 testing.

OSHA is giving employers additional time to implement the Emergency Temporary Standard (“ETS”) that were set to begin on December 6, 2021. OSHA will not enforce any of the ETS requirements until January 10, 2022. OSHA has further stated that it will not issue citations for non-compliance with the ETS testing requirements prior to February 9, 2022, as long as the employer is “exercising reasonable, good-faith efforts to come into compliance with the standard.”

However, the latest revival is not the end of the vaccine or test saga.  The 6th Circuit ruling has been appealed on an emergency basis to the U.S. Supreme Court. Whether or not OSHA has the authority to promulgate rules related to COVID-19 and workplace safety will likely be decided by the U.S. Supreme Court.

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

For employers, this is a confusing time and being prepared to respond to this changing area of law is key. The attorneys at Freeburg & Granieri, APC are here to help you design your business’ COVID-19-related policies and procedures so they work for your business and keep your employees safe.


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