As you have probably heard by now, the stay on the President’s emergency OSHA vaccination rule was lifted December 17. The Supreme Court is likely to rule on whether the stay should be reinstated, but not until the first of the new year. Until we hear otherwise, you must immediately begin a good faith effort to comply with the OSHA Emergency Temporary Rule Standards.
Complying with the federal rule is complicated by the fact that Florida recently enacted provisions that impact application of the federal rule to Florida businesses.
Who is affected: The federal rule applies to all employers with 100 employees or more (although the recently adopted Florida law applies to all businesses). For multiple employers that are affiliated by common ownership and management, the employees will be aggregated to determine the total number in the group.
When is this effective: Between now and January 9, 2022, the federal rule requires that you work in good faith to adopt a policy that requires that either every employee is vaccinated or that unvaccinated employees are regularly tested and wear masks at work. However, recent Florida law prohibits requiring all employees to be vaccinated. Until and unless it is determined that the federal rule preempts Florida law, the only way that you can comply with both provisions is to adopt a policy which permits unvaccinated employees to be tested once a week at your cost and wear masks at work.
What you should do:
  • Immediately appoint an OSHA Compliance Coordinator to read the regulations and develop a written policy. Sample policies can be found here:

Mandatory Vaccination Sample

Vaccination or Testing and Face Covering Sample

  • Notify all employees of the terms of the policy as soon as possible.
  • Encourage, do not require, all employees to be vaccinated.
  • Immediately require unvaccinated employees to wear masks at work and let them know they will be required to undergo weekly testing.
What else you should know:
  • Beginning January 10, 2022, you can be fined if you have not implemented a plan and required unvaccinated employees to wear masks at work.
  • Beginning February 9, 2022, employers that have implemented a plan that permits unvaccinated employees to be tested at least once a week must have the testing component in place.
  • The federal emergency rule does not require that the employer pay for testing, but Florida law does require that employers pay for testing. Until and unless it is determined that the federal rule preempts Florida law, the only way that you can comply with both provisions is to pay for testing.
  • The law does provide for accommodations for employees with ADA-covered disabilities or other medical circumstances that prevent them from receiving the vaccine and for those with sincerely-held religious beliefs. Consult with your legal counsel regarding how to handle these issues. Florida law provides forms for use when considering these exemptions.
The goal of the federal rule is to get people vaccinated, thus it permits employers to require employees to be vaccinated or pay for mandatory testing. The goal of the Florida law is to keep people working, so it removes potential impediments to employees attending work (i.e. prohibits a requirement for vaccination or employees paying for mandatory testing).
As soon as clarity is provided as to if/how the state law and federal rules will co-exist we will provide further input. We recommend that you begin immediately to prepare your policy and collect data on those in your stores who are vaccinated. You may ask employees if they are vaccinated and should maintain a confidential log of employees that have provided proof of vaccination.
Please go to our FADA website to obtain more information and find copies of a standard written policy as well as NADA alerts and guidelines from our OSHA consultant, KPA.

Yesterday, the U.S. Supreme Court gave the U.S. Department of Labor until December 30, 2021 to respond to several petitions for an emergency stay of the Occupational Safety and Health Administration’s “Vax or Test” Emergency Temporary Standard (ETS). On Friday, December 17, 2021, a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit lifted a pre-existing stay, effectively reinstating the ETS for covered employees with at least 100 workers.

The ETS is now in effect. However, OSHA has stated that it will exercise enforcement discretion with respect to employers exercising reasonable, good-faith efforts to come into compliance by not issuing citations for noncompliance before January 10, 2022 for those mandates originally required to be met by December 5, 2021, and by not issuing citations before February 9, 2022, for noncompliance with the “vax or test” mandates originally required by January 4, 2021.

Since the Supreme Court is unlikely to issue a decision prior to the new year, it is very important that dealers review the mandates set out in OSHA’s ETS now, and consult with their counsel as to what steps toward compliance they should be taking. In that regard, please see the NADA webinar OSHA’s New COVID-19 Employer Vaccine-or-Test Mandate: A Summary for Franchised Dealerships. In addition, recent examples of law firm outreach regarding OSHA’s ETS can be found here. Specific questions on how and when to comply with the ETS or with related state and local law should be addressed to individual counsel. General questions on the ETS and on related court actions may be directed to [email protected].