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Sofia D. Mabee

Labor/Employment Attorney
Sofia D. Mabee

315 Fifth Avenue S, Suite 1000
Seattle WA 98104
206.676.7000
slg@summitlaw.com

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What Does the Recent Court Ruling Regarding OSHA's Vaccinate-or-Test Rule Mean For Your Organization in Washington?

Employers are undoubtedly feeling whiplash from the effects of various legal rulings on the enforceability of the federal Occupational Safety and Health Administration’s Emergency Temporary Standard (“OSHA ETS”), requiring most employers with 100 or more employees to adopt mandatory COVID-19 vaccination or weekly testing programs. In November 2021, a federal appellate court issued a stay blocking implementation and enforcement of the OSHA ETS. But last Friday, December 17, 2021, the federal appellate court designated to address the consolidated legal challenges related to the ETS lifted the stay. That decision has been appealed to the U.S. Supreme Court, with an oral argument scheduled for January 7, 2022. While the appeal process continues, OSHA plans to resume enforcement of its rule mandating vaccination or testing programs. This means, once again, the OSHA ETS rules are “live” and need to be followed by covered employers. However, OSHA has announced it will not issue citations for noncompliance with any aspects of the ETS before January 10, 2022 and will not issue citations for noncompliance with the testing portion of the rule before February 9, 2022.

Significantly, employers in Washington may have more time to achieve compliance. Washington is a “state plan” state, meaning workplace occupational safety and health standards are established by Washington law – the Washington Industrial Safety and Health Act, or “WISHA”) – rather than OSHA requirements. WISHA standards must meet or exceed OSHA requirements and state plan states like Washington have 30 days from the issuance of new OSHA standards to update their state laws to achieve compliance. Now that the stay on the OSHA ETS has been lifted, we expect the Department of Labor & Industries Division of Occupational Safety & Health to soon issue WISHA standards in alignment with the OSHA ETS. While Washington has the ability to adopt even more protective standards than OSHA, Governor Inslee has announced his intention to follow the OSHA ETS rules.

For additional information, including employer action items and answers to frequently asked questions, please see Summit's alert: Guidance on Anticipated WISHA Vaccinate-or-Test Rules.

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