Understanding the OSHA ETS and Kentucky Compliance

Chamber Members,

We know there are a lot of questions surrounding compliance of the Occupational Health and Safety Administration (OSHA) mandate on all businesses with 100 employees or more requiring weekly testing for employees who are not vaccinated. These questions are especially pressing as we continue to wait for a ruling from the U.S. Supreme Court on the Emergency Temporary Standard (ETS) and the January 10 deadline for businesses to implement a plan has now passed.

Kentucky, as an OSHA state plan, has 30 days from the effective date of the ETS to adopt or release their version of the ETS.

So, what does this mean?

The Kentucky Chamber has been in constant communication with state officials on this issue. We have learned Kentucky will file its ETS by January 25. That means businesses will have 30 days to get in compliance, meaning they will need a plan by February 24 under this timeline as it stands today.

However, we expect a ruling from the U.S. Supreme Court on the constitutionality of the mandate before then which could make that timeline moot.

If the mandate is upheld and enforceable, Kentucky could ask for another 30-day extension from the federal government which would mean businesses would begin enforcement of their plans by March 24.

The Kentucky Chamber is also working on watching this matter closely because while the mandate from the Biden administration says the cost of testing would be the burden of the employee, a current Kentucky statute states that the cost of any medical examination that is a condition of employment must be paid for by the employer.

The Kentucky Chamber held a webinar with Kentucky Gov. Andy Beshear Monday discussing the spread of the omicron variant and the ETS was addressed during the call. You can view the full webinar video below.