December 15, 2021
To: All WACOSA stakeholders
From: Steve Howard, Executive Director
Re: Update on most recent vaccine guidance
If you have been following the news related to COVID-19 vaccination requirements, you are likely aware of the current situation associated with the Occupational Health and Safety Administration’s (OSHA) proposing an Emergency Temporary Standard (ETS). Under this standard, employers of 100 or more must develop, implement and enforce a mandatory COVID-19 vaccination policy or implement a policy requiring employees to choose to either be vaccinated or undergo weekly COVID-19 testing as a condition of employment. Wearing a facemask is also a provision of the current proposal. Please note the most recent development relating to OSHA’s ETS:
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” The U.S. Court of Appeals for the Sixth Circuit now has jurisdiction over ETS challenges and DOL has filed a motion to lift the stay. While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
(a public comment period is currently underway related to the proposed ETS and is scheduled to expire on January 19, 2022)
We assume that sometime after the January 19, 2022 time for public comment, a decision will be handed down deciding this issue. Being an employer of 100 or more, WACOSA would be bound by the proposed ETS, should it eventually be enacted. It is important that our WACOSA stakeholders know that, under the requirements of the proposed ETS proposal, we are being advised by governmental authorities that WACOSA clients would be defined as “employees” and, as such, would be subject to the same conditions required of all WACOSA personnel. That is, if the current ETS requirements remain unchanged, WACOSA clients would be required, as a condition of participating in paid employment, to be fully vaccinated or undergo weekly testing for COVID-19. To clarify, this would include both center-based and community-based employment. We wanted you to be aware that, while the current appeal has not yet been resolved, the outcome could impact your respective loved one. Additional informational links related to the current ETS proposal and corresponding court action/s can be found below. We felt it important to keep you informed, even though the outcome at the present time has not yet been decided.
We will continue to keep you posted as we know more.
OSHA ETS Information: https://www.osha.gov/coronavirus/ets2
News Release from OSHA on November 4, 2021: https://www.osha.gov/news/newsreleases/national/11042021
OSHA ETS Fact Sheet: https://www.osha.gov/sites/default/files/publications/OSHA4161.pdf