As reported in our November 8, 2021, Federal Legislative Update, the U.S. Department of Labor’s (USDOL) Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) on November 4, 2021, to require large employers to develop, implement and enforce a COVID-19 vaccination policy or institute a policy to allow employees to choose between vaccination and weekly testing.
The ETS applies to employers with 100 employees or more that are subject to the Occupational Safety and Health Act of 1970. This includes county governments located in the 26 states with OSHA-approved state plans, which are OSHA-approved workplace safety and health programs operated by individual states or U.S. territories. Illinois is one of these states.
On December 17, 2021, the U.S. Court of Appeals for the 6th Circuit dissolved the 5th Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA is moving forward with implementation on the employer vaccine mandate.
On January 7, 2022, the U.S. Supreme Court will hear oral arguments based on appeals of the 6th Circuit's decision. The Supreme Court, however, has not issued a stay and compliance dates for the vaccine mandate remain in effect.
It is recommended that counties continue to expeditiously prepare for implementation of the mandate as if it will take effect. County officials should consult with their state's attorneys office regarding implementation.
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 has announced it will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. Previously, the deadline for employees to be fully vaccinated or to begin regular testing was January 4, 2022. OSHA will work closely with entities to provide compliance assistance.
Click on this link to view a summary of the ETS prepared by NACo.
Click on this link to view additional resources available on the U.S. Department of Labor's OSHA website. Resources include sample templates for mandatory vaccine, testing and mask policies.
ISACo will continue to update counties with any new developments.