Oregon OSHA Delay in COVID-19 Vaccine or Test Standard – Community News
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Oregon OSHA Delay in COVID-19 Vaccine or Test Standard

On November 4, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued a new Temporary Emergency Standard (ETS) requiring employers with 100 or more employees to ensure that their employees are either fully vaccinated or subjected to COVID-19 testing for at least once a week.

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an injunction to continue the initial suspension of the ETS on November 6, 2021. Since then, several appeals courts on the US circuit have received petitions for review of the ETS. On November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation conducted a legally required arbitrary selection of appellate courts to hear the consolidated cases from across the country, with the U.S. Court of Appeals for the Sixth Circuit emerging as the selected court . The sixth circuit can end the stay or leave it in place.

Oregon has a state OSHA plan approved by federal OSHA and administered by the Oregon Occupational Safety and Health Division (Oregon OSHA). Thus, Oregon employers are subject to the Oregon OSHA standards rather than the federal OSHA standards and the federal ETS. Oregon employers are not required to comply with the federal ETS; rather, they should be compliant with Oregon OSHA’s version of the ETS when it’s released. Oregon OSHA may adopt ETS standards that differ from the federal ETS, but Oregon OSHA standards must be “as effective as” the federal ETS.

When the federal ETS was enacted on November 4, 2021, Oregon OSHA had only 30 days to adopt its own standards, until December 4, 2021. However, in light of the residency warrant, Oregon OSHA recently updated its website to state that it ” to do[es] does not expect a rule to be passed before December 4, 2021,” although it “continues discussions with stakeholders”. If the stay remains in place, Oregon OSHA indicated that its “timelines will be adjusted accordingly.” Oregon OSHA also stated that it would also “continue to monitor and evaluate the lawsuit” [its] options.”

It is not clear if or when Oregon OSHA will adopt its own version of the ETS. It could be weeks before the challenges to the ETS are resolved and Oregon OSHA sets a course. As a result, employers may want to continue to monitor legal developments and consider continuing preparations to meet a vaccination and testing standard that is at least as effective as the federal ETS, whether or not the federal ETS is maintained.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.National Law Review, Volume XI, Number 327