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Employer Shot-or-Test Compliance Delayed Weeks in Some States

Jan. 3, 2022, 5:42 PM

Many state safety agencies have until Jan. 24 to enact federal OSHA’s emergency temporary standard requiring Covid-19 shots or weekly testing for large private employers, two weeks longer than employers in other states who must comply by Jan. 10.

After that extra time for state plans to adopt the standard, employers in those states will have another 30 days to comply.

Federal OSHA allows the governments of 26 states, Puerto Rico, and the U.S. Virgin Islands to adopt and enforce their own workplace safety and health rules for private-industry or state and local government workers, provided their safety measures are at least as good as those prescribed by the federal agency.

That means employers in many states—including California, Michigan, Indiana, Tennessee, Washington, and Virginia—may not need to have shot-or-test programs in place until late February.

But federal OSHA has given employers in states directly overseen by the agency until Jan. 10 to start meeting the standard’s requirements.

Places that don’t qualify for that extension covering private employers include Florida, Illinois, New York, New Jersey, and Ohio—states where weekly counts in late December surpassed 800 new cases for every 100,000 people, according to the Centers for Disease Control and Prevention.

The emergency temporary standard, released Nov. 4, requires employers with 100 or more workers to ensure employees are fully vaccinated or pass a Covid-19 test at least once a week.

Complicating the state adoptions is a legal challenge at the U.S. Supreme Court for arguments Jan. 7 on whether implementation of the federal rule should be halted while a lower court—the U.S. Court of Appeals for the Sixth Circuit in Cincinnati—considers the standard’s legality. If a court delays federal OSHA’s implementation of the rule, states also can pause adopting their rules.

Where the States Stand

Despite those deadlines, the California Occupational Safety and Health Standards Board hasn’t set a meeting date to consider adopting its own version of the federal regulation. The California Department of Industrial Relations said in a statement the board’s next monthly meeting is scheduled for Jan. 20, but the agenda hasn’t been set.

The board had scheduled a hearing for Nov. 18 to consider adoption of the federal measure, then canceled the session after a federal court stayed the rule.

The Virginia Safety and Health Codes Board will meet in “January or early February” to consider the federal standard or a Virginia-specific rule, according to Department of Labor and Industry.

Arizona, Minnesota, Indiana, Oregon, North Carolina, Nevada, Washington, and Wyoming are considering adopting the federal standard or their own versions, but no regulations have been approved.

Two of those states, Arizona and Wyoming, along with seven others that have their own safety agencies—Alaska, , Indiana, Iowa, Kentucky, South Carolina, Tennessee, and Utah—are among those contesting the OSHA standard in federal court.

The state safety agencies all operate with the approval of federal OSHA. If a state doesn’t adopt a standard, federal OSHA can begin the process of revoking its certification and taking over enforcement, an undertaking that can take more than year.

When OSHA enacted its Covid-19 health-care emergency temporary standard in June, all but Arizona, South Carolina, and Utah adopted the rule within a couple of months.

OSHA in October threatened to begin de-certification efforts for those state plans that didn’t adopt the health worker shot regulation, prompting South Carolina and Utah to enact their rules. OSHA has yet to issue a formal notice against Arizona, but any move to do so may be moot after OSHA on Dec. 27 said it was withdrawing the federal standard.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com