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Employers Should ‘Have a Plan’ for Coming Covid-19 Inspections

Dec. 21, 2021, 10:01 AM

The hundreds of thousands of employers covered by OSHA’s Covid-19 vaccination-or-testing mandate should be ready for inspections starting Jan. 10, attorneys and consultants are warning.

While the Occupational Safety and Health Administration won’t require employers to have workers fully vaccinated or tested at least weekly until Feb. 9, OSHA can start citing employers earlier for other violations of the Covid-19 emergency temporary standard.

“If you are doing nothing to comply, you may be subject to a citation,” said former OSHA official Richard Fairfax, who retired in 2014 as the agency’s career-service deputy administrator and is now a National Safety Council consultant.

The Covid-19 standard from the Biden administration requires most employers with 100 or more workers to implement a vaccination-or-testing mandate. The standard—meant to stem the thousands of Covid infections coming in waves across the country—had been slated to take effect Dec. 6, but a federal court decision prevented OSHA from implementing the rule. There have been more than 51 million Covid-19 cases reported as of Monday, Bloomberg data shows.

OSHA has said it won’t cite employers it believes are making a good-faith attempt to comply with the regulation by the deadlines.

The agency’s other Covid-19 emergency standard covering just the health-care industry is set to expire Tuesday, six months after it was issued. OSHA hasn’t said if it will seek to extend the emergency standard or issue a permanent rule. The health-care standard requires hospitals, nursing homes, and some medical clinics to establish prevention programs, but it doesn’t require workers to be vaccinated or tested.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

Employers Preparing

Attorney Laura Lawless, a partner with Squire Patton Boggs in Phoenix, said she would expect OSHA inspectors in January to include reviews of large employers’ Covid-19 standard compliance efforts as a routine part of any inspection.

“At the very least, know who is vaccinated. Have a plan in place ready to issue,” advised attorney George Ingham, a partner with Hogan Lovells in Tysons, Va.

The U.S. Court of Appeals for the Sixth Circuit on Dec. 17 lifted a stay blocking the rule, freeing OSHA to begin enforcement. Shortly after the court’s announcement, OSHA said it won’t issue citations before Jan. 10 and wouldn’t require compliance with the vaccination-or-testing mandate until Feb. 9.

States and business groups have already petitioned the U.S. Supreme Court to once again halt the standard, but it’s likely they’ll have to wait until January before a decision is made on the requests.

Most larger employers already have programs in place that meet or exceed some of the standard’s provisions, such as tracking whether employees are vaccinated, said Deborah Roy, past president of the American Society of Safety Professionals and a safety consultant.

Employers should continue to develop the programs so they can satisfy the OSHA requirements in time for the coming deadlines, she said.

Many employers also are choosing to have Covid-19 testing programs, and not taking OSHA’s option of requiring workers to pay for testing, Roy said.

Those With State Plans

OSHA has issued compliance assistance for employers, including model plans for testing and vaccinations. The American Industrial Hygiene Association and others have provided free guidance under the moniker of Commit to Community, Awareness, Responsibility, and Equity.

Ingham said employers in states where governments have passed bans on employer vaccination mandates still need to prepare for the federal standard’s implementation deadlines since OSHA believes its requirements take precedent over local and state requirements.

In states covered by state worker safety agencies, employers must pay attention to their states’ implementation deadlines, which could be different from federal OSHA, Lawless said.

The emergency temporary standard requires employers to develop, implement, and enforce a mandatory Covid-19 vaccination policy or a policy requiring employees to choose either to get vaccinated or to undergo regular Covid-19 testing and wear a face covering at work.

In addition to requiring employers to provide paid time off for workers to get vaccinated, the standard also mandates paid sick leave for them to recover from any side effects.

Employers not enforcing OSHA’s newest rule could face a fine of up to $13,653 for each serious violation. A willful violation, essentially an employer deliberately disregarding the mandate, could lead to a fine as high as $136,532.

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; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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