Many are following news nationally about proposals from the Federal Occupational Safety and Health Administration (OSHA) to require COVID-19 vaccines or regular testing (COVID-19 Vaccination and Testing Emergency Temporary Standard or “ETS”) for employers with greater than one hundred employees. It may feel confusing for those residing and working in states like Oregon that have “State Plans.”
State Plans are OSHA-approved workplace safety and health programs operated by individual states or U.S. territories. There are currently 22 State Plans covering both private sector and state and local government workers, and there are six State Plans covering only state and local government workers. State Plans are monitored by OSHA and must be at least as effective as OSHA in protecting workers and in preventing work-related injuries, illnesses and deaths. (Learn more from Federal OSHA.)
Oregon OSHA has jurisdiction for both private sector and state and local government workers. When Federal OSHA first released plans to require vaccine mandate or testing for employers with more than 100 employees, states like Oregon were given fifteen days to report to Federal OSHA their plan to either adopt the proposed federal rule as planned, or write a rule that was at least as effective. Then, the new rule would need to be adopted within thirty days from the original date.
All of this has changed because of what has happened on the national scene.
Most recently nationally, Federal OSHA has suspending enforcement of the Biden administration’s COVID-19 vaccine mandate for larger businesses after a federal appeals court upheld a stay on it last week. From Federal OSHA: “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.” (Learn more from Federal OSHA).
What does this mean for employers in Oregon? First off, recall that the Oregon Health Authority previously issued a workplace vaccine mandate for healthcare institutions (like OHSU, my employer), state government employees and those working in public education. This prior mandate is not affected by the current happenings. However, for private employers or those not affected by the previous Oregon Health Authority requirement, Oregon OSHA has now released this statement on their website:
On Nov. 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay federal OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on Nov. 5, 2021 (ETS2). The court ordered that federal OSHA “take no steps to implement or enforce” the ETS “until further court order.”
Oregon OSHA is continuing discussions with stakeholders, and at this point, we do not anticipate adopting a rule by Dec. 4, 2021. If the stay remains in place, our timelines will be adjusted accordingly. We will continue to monitor the lawsuit and evaluate our options. (Learn more from Oregon OSHA).
In the meantime, of course, existing related COVID-19 rules and guidelines are still in place. We continue to advocate following evidence-based precautions and guidelines as we continue to work together to keep our workforce safe and healthy.