Federal Court Temporarily Blocks OSHA Covid-19 Vaccination Mandate That Could Go Into Effect January 4, 2022

Last week, the Occupational Safety and Health Administration (OSHA) issued the Covid-19 workplace vaccine mandate that President Biden announced in early September.  Under the long-awaited emergency temporary standard (ETS), employers with 100 or more employees must require that workers either be vaccinated or provide negative Covid tests weekly. OSHA intends for the ETS to go into effect January 4, 2022. Nevertheless, lawsuits challenging the ETS have already been filed and a federal appeals court has temporarily blocked the mandate from going into effect while the parties argue the merits of their case. It is unclear if or when the court might lift its order.

In issuing the ETS, OSHA released an FAQ document that addresses a number of issues, including whether part-time workers are counted toward the 100-employee requirement, what happens in a workplace where the number of workers fluctuate, who pays for the weekly tests (the employer or employee?), etc.

One FAQ issue relevant to bedding licensing organizations is whether the 100 employee requirement is measured based on the total of all employees working for all licensees of a group or at the individual licensee level. In discussing how the ETS would apply to franchising organizations, OSHA states that if each franchise location is independently owned and operated, the franchisor and franchisees would “generally” be separate entities for coverage purposes. Presumably, OSHA’s analysis would also apply to bedding licensing groups. It is unclear what OSHA means by the word “generally.”

ISPA will continue to follow developments.