OSHA Mandate NOW in Effect,
Compliance Deadlines Extended

December 22, 2021

Late December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the nationwide stay on the Emergency Temporary Standard (ETS) establishing OSHA’s vaccine mandate for employers with 100 or more employees. The stay, issued in mid-November, had suspended the ETS pending a final judgment on its validity.

Recognizing the uncertainty created by the stay and the need for additional time to comply, OSHA announced that, so long as an employer is engaging in reasonable, good faith efforts to come into compliance with the ETS, it will not issue citations for noncompliance until January 10, 2022 for all requirements except testing, for which it will not issue citations until February 9, 2022. Employers who have not done so already must take steps now to implement the ETS’ requirements.

For CAAs Subject Only to the OSHA ETS (and not another federal mandate):

• By January 10, 2022, the CAA must determine the vaccination status of each employee and keep records related to vaccination status; provide specified information about the vaccines; implement written policies regarding vaccination, testing, and masking, and specifically whether employees are permitted to test weekly in lieu of getting vaccinated.
• By February 9, 2022, the CAA must begin collecting negative COVID-19 test results from employees who are not fully vaccinated to enter the workplace.
  
  A CAA subject only to the OHSA ETS may use CAPLAW’s template Vaccination or Testing and Face Covering Policy for All Employees (OSHA-Compliant) or Mandatory Vaccination Policy for All Employees (OSHA-Compliant).

CAAs are advised to review all current and planned workplace vaccination policies to ensure compliance with the ETS and all applicable federal laws and regulations.

For Head Start Grantees Also Subject to OSHA ETS

Head Start grantees with 100 or more employees are subject to the OSHA ETS as well as the Head Start vaccine and mask mandates. The Head Start mandates apply to Head Start staff (defined broadly to include not just Head Start teachers, but also many administrative employees whose responsibilities involve the Head Start program), contractors and volunteers who provide services to Head Start children and families. CAAs subject to both mandates must require those covered by the Head Start mandate to get vaccinated, but may opt to allow non-Head Start employees to test weekly or get vaccinated. As a result, these CAAs have to think about their compliance strategy, which will then dictate the compliance deadlines that apply to them.

For a CAA seeking to mandate vaccinations for all employees (i.e., with no option to test weekly for non-Head Start, OSHA covered employees):

• Currently (effective November 30, 2021), all individuals 2+ (both vaccinated and unvaccinated) in certain Head Start settings must wear a mask indoors and outdoors in certain conditions.
• By January 10, 2022, the CAA must determine the vaccination status of each employee and keep records related to vaccination status; provide specified information about the vaccines; implement written policies regarding vaccination, testing, and masking.
• By January 31, 2022, all Head Start staff and covered Head Start contractors and volunteers must be fully vaccinated, which means they must receive the second dose in a two-dose series, or first does in a one-dose series, by this date.
• By February 9, 2022, all CAA employees who are not covered by the Head Start mandates must be fully vaccinated, which means they must receive the second dose in a two-dose series, or first does in a one-dose series, by this date.
  
  A CAA choosing this strategy may use CAPLAW’s template Mandatory Vaccination Policy for All Employees and Individuals Covered by the Head Start Mandate (OSHA- and Head Start-Compliant).

For a CAA seeking to permit employees who are not subject to the Head Start mandates the option to test weekly in lieu of getting vaccinated:

• Currently (effective November 30, 2021), all individuals 2+ (both vaccinated and unvaccinated) in certain Head Start settings must wear a mask indoors and outdoors in certain conditions.
• Beginning January 10, 2022, all unvaccinated employees must mask indoors.
• By January 31, 2022, all Head Start staff and covered Head Start contractors and volunteers must be fully vaccinated which means they must receive the second dose in a two-dose series, or first does in a one-dose series, by this date.
• By February 9, 2021, all CAA employees who are not subject to the Head Start mandates and who elect weekly testing instead of getting vaccinated must begin submitting negative COVID-19 tests to enter the workplace.
  
  A CAA choosing this strategy may use two CAPLAW template policies: (1) the Mandatory Vaccination Policy for Individuals Covered by the Head Start Mandate (OSHA- and Head Start-Compliant); and (2) the Vaccination or Testing and Face Covering Policy for Non-Head Start Employees (OSHA- and Head Start-Compliant).

CAAs in states or localities with laws prohibiting employer vaccine mandates should work with a local attorney to fully understand how to navigate those laws in light of the Sixth Circuit’s decision.

Please refer to CAPLAW’s updated Federal Vaccine Mandate Compliance Guide for more information on the specific terms of the OSHA ETS and other federal vaccine mandates, as well as a step-by-step consideration of how each mandate applies to your agency. CAAs may also find all of the updated template vaccination policies reflecting the ETS’s new compliance deadlines in CAPLAW’s Resource Library.

While all employers, including CAAs, covered by the ETS must resume compliance efforts, the future of the ETS remains uncertain. The Sixth Circuit did not rule on the merits of the mandate, and emergency appeals to the U.S. Supreme Court are already underway. CAPLAW will continue to monitor legal developments and issue updates as necessary.

This news flash is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Award Number 90ET0467-03-C3. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.

The contents of this news flash are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.