In the words of famed legal scholar, Porky Pig, “That’s all Folks.” The OSHA mandate for employers with 100 or more employees is dead effective today. What? Really? Yes. OSHA published a notice today indicating that it is withdrawing its emergency vaccine or test mandate first published in November. Essentially, OSHA saw the writing on the wall that there was no chance its mandate would ever get past the Supreme Court.
What does this mean for employers who would have been covered by the OSHA mandate?
- There is no vaccine or testing mandate.
- You are not legally obligated to track the vaccination status of employees.
- You should continue to implement programs/policies designed to prevent the spread of COVID in the workplace.
- OSHA is not going away. It is going to continue to hound employers on COVID issues and will likely push for permanent standards similar to the ETS.
HR professionals everywhere are rejoicing! But, as grandma might have warned you: “be careful what you wish for.” The upside to the death of the OSHA mandate is that there is no federal mandate. The downside is that multi-state employers are now stuck with a patchwork of state laws that govern what employers can/can’t do with regard to vaccination, testing and masking. In most states, employers can still request proof of vaccination from employees and require that unvaccinated employees wear masks or get tested (with accommodations for religion/medical). However, there are several states that have imposed restrictions on employers’ right to distinguish between vaccinated/unvaccinated employees. There are even a few states that have standards stricter than those proposed by OSHA. (The “groan” you just heard was from HR directors with locations in the Country of California where it requires a flowchart, compass and breadcrumbs to follow the COVID rules.) If you’re a multi-state employer, it would be wise to check with your employment attorneys to verify which laws affect your company.
IMPORTANT: This does not impact the CMS vaccination mandate for healthcare employers. Those employers still must comply with those rules. Likewise, this does not impact the requirements for federal contractors (which are currently “stayed” to due pending court cases but are not dead (yet)).
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