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Don’t Know What to Do While the OSHA Mandate-or-Test Vaccine ETS is in Limbo? Here’s a 3-Step Approach for Employers

By Danielle Bearden | Director of Human Resources

You’ve digested the information on OSHA’s mandate-or-test vaccine ETS, you’ve read about the rule being blocked by a court order, and you know that a conservative appeals court now controls the fate of the rule (for now).

But you also know that the ETS could get jolted back to life at any moment, either by a surprise appeals court ruling or by a final ruling from the U.S. Supreme Court. There’s no way to tell when those events could happen, leaving employers uncertain what steps to take during this period.

Adding to your level of discomfort may also be the patchwork of new state laws that may or may not conflict with your ability to implement such measures, and which may or may not be rendered invalid if and when the federal ETS is upheld. Here is a commonsense approach that employers should consider during these confusing times. If you are subject to the OSHA ETS, you should perform some behind-the-scenes actions but not unfurl major initiatives during the limbo period.

3 Steps to Take During Litigation Limbo

  1. Use Coming Weeks to Gather Facts and Information

First, ask these series of questions about your organization to determine if you are even covered by the OSHA ETS and/or whether you have similar impending obligations imposed on you by other government mandates – which are less likely to be struck down. You may be able to tie in some ETS preparation with these other efforts.

  • Do you meet the proposed OSHA ETS coverage requirements?
  • Are some or all of your sites covered by the Mine Safety & Health Act?
  • Do you have locations where state and local rules impose COVID-19 obligations?
  • Are you covered in whole or in part by the Biden Federal Contractor Mandate because you have one of the four federal contractor or subcontractor contracts?
  • Are you covered by the earlier OSHA Healthcare ETS, and/or the requirements being imposed on recipients of Medicare/Medicaid monies by the CMS Medicare Omnibus Staff Vaccine Mandate Interim Final Rule?

Analyze whether you are covered by these other mandates, and if so, whether coverage is limited to certain business units or work. In such scenarios, there may be alternative strategies for you to take in consultation with your employment law attorney.

Besides gathering facts about coverage, you should use this time to gather information about your workforce. You can use this time period to inquire among your employees their vaccination status so that you are in prime position to make determinations about whether to impose a mandate or testing requirement, and can implement either such obligation most effectively.

  1. Weigh the Probability of the OSHA ETS Being Upheld Against Your Risk Tolerance

Our only guarantee is that we will timely provide updates when there are significant developments in the process, so make sure you are subscribed to our Wheel of Service Email notifications.

If the ETS is ultimately upheld and implemented, expect OSHA to follow its normal approach to imposing penalties for violations with initial “Serious” violation penalties of $14,000 for violation of a standard requirement and up to $136,000 for “Repeat” or “Willful” violations.

  1. Consider Some Commonsense Steps

Once you’ve gathered information and weighed the risks, consider the following steps:

  • Establish an ETS-compliant written policy on vaccines, testing, and face coverings, and determine how you will enforce it. The ETS imposes more requirements than vaccination, including notices to employees and OSHA.
  • Plan for how to handle temporary and long-term employee loss.
  • Evaluate your company culture and how employees will react to a vaccine mandate. Do you know current site vaccination rates? Have you offered Incentives and were they effective?
  • Provide information to employees on vaccines and the ETS requirements (and other mandates if applicable to sites or business units).
  • Prepare to provide paid time off to employees to obtain the vaccine and reasonable time and paid sick leave to recover from side effects following each dose.
  • Follow the narrow ADA-acceptable approach and obtain records and a roster of employee vaccination status, and how to not unduly excite workers.
  • Build a process to evaluate requests for medical and religious accommodations. The CMS and Federal Contractor analysis may in practice be stricter.
  • Under federal wage and hour regulations, plan to pay nonexempt employees for required testing, and determine whether to charge for test costs for exempt employees.
  • Determine state laws dealing with vaccination requirements, proof of vaccination, pay for testing, mask requirements, etc.
  • Consult your counsel on the CMS Healthcare and Federal Contractor vaccine mandates, which are subject to various court orders blocking them as well.
  • Recognize Collective Bargaining obligations if you are unionized.

We will continue to monitor this situation and provide updates as warranted. Make sure you are subscribed to Lever1 Wheel of Service emails  to get the most up-to-date information.


Danielle Bearden is a dynamic HR professional, currently serving as the Director of Human Resources at Lever1, planning, developing, and directing the administration of all HR functions within the Lever1 Human Resources Department. She has over 15 years of experience in all areas of Human Resources including strategic planning, total rewards, performance management, employee wellness and safety, HR compliance and labor relations.