Potential COVID-19 vaccine mandate – where are we?

On November 5 the U.S. Department of Labor issued an emergency temporary standard (ETS) through the Occupational Safety and Health Administration (OSHA). This emergency rule mandated that employers of certain size (>100 employees) require all employees to either be vaccinated or undergo weekly COVID testing. This rule only affected entities that are under OSHA jurisdiction; as OSHA does not oversee public entities, and Washington is a state-plan state, our members are not impacted directly by this federal rulemaking.

Governor and L&I rulemaking

Washington public entities will be impacted, however, by whatever similar rules are implemented by the governor and the Department of Labor and Industries (L&I). As an OSHA state-plan state – where the state is responsible for occupational safety rulemaking and enforcement oversight – Washington must pass safety rules that are at least as effective as federal safety rules OSHA promulgates. With the November 05 issuance, Washington is expected to have their rule in place by December 5. Any rule for Washington to reflect at a minimum the federal standard, but we anticipate a more restrictive rule.

Emergency temporary standard – stayed

This timeline was put into question when the 5^th Federal Circuit Court stayed the ETS. Enforcement of the rule is now on hold as the courts determine which circuit will hear further arguments on the matter; that court can then either extend or overturn the 5^th circuit’s stay. While it may be possible for the governor to issue a parallel COVID mandate rule for the state, we do not know if he will do this while the federal rule it is based on is being litigated.

AWC has provided an overview of the federal rule and anticipated state implementation. When we gain clarification on the Washington rule, and what impacts and expectations it holds for our members, we will provide information and resources to membership. For the short-term it appears we are in a holding pattern as the ETS winds through the federal courts. If you have any questions, contact the Retro team.