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OSHA said it has extended the comment period by 45 days to January 19. The rule, which comes in the form of an emergency temporary standard or ETS, was unveiled November 4, and is part of the Biden administration's plan to increase national vaccination rates and limit Covid-19 outbreaks.

In a statement to The Business Journals, an OSHA spokesperson said the extension of the comment period is not connected to the effective dates for the mandate-or-testing rule or the legal battle surrounding it. That means the extension won't affect those deadlines.

Deadline details

The first deadline, which calls for large employers to require masking of unvaccinated workers, is December 6. The deadline to either mandate the vaccine or require weekly testing for unvaccinated workers is January 4.

However, both of those deadlines are temporarily suspended due to a federal court temporarily blocking implementation or enforcement of the ETS — leaving employers in what has become a frustrating and familiar state of limbo surrounding federal Covid-19 recommendations and requirements.

The case is awaiting action by the 6th U.S. Circuit Court of Appeals. Bob Nichols, a partner at Bracewell LLP, said the court's schedule suggests it may not act right away.

Nichols said it's unknown whether the deadlines will be extended by a court or by OSHA. He said this is the first litigation over an OSHA ETS since 1983, so there's no recent precedent to shed light on how the situation may unfold.

"For that reason, covered employers are well advised to plan for the possibility that the ETS could go forward with the current effective dates provided by OSHA in place," Nichols said. "Prudent employers should be ready to implement all elements of the ETS based upon OSHA's original schedule provided for in the ETS itself."

Among other requirements, Nichols said that means employers would need to have collected all the required vaccination information and documentation for its workforce by Dec. 6 and drafted and distributed a policy consistent with the ETS requirements by that date.

But many employers appear to be awaiting a court decision before making some of the key moves called for by the rule.

A new survey from Willis Towers Watson PLC found 32% of employers will mandate the vaccine only if the OSHA rule takes effect.

Employment law attorneys said preparing for compliance with the rule isn't something that should happen overnight or on short notice — especially for those offering the testing option.

Small employers and the comment period

While the ETS applies only to employers with 100 or more employees companywide, OSHA hasn't ruled out a future regulation that would affect smaller employers.

For those reasons, OSHA is encouraging small businesses to share their perspectives on the mandate-or-testing rule in the event it considers a similar rule for small businesses down the line. Comments can be shared at www.regulations.gov.

OSHA said the 100-employee threshold was chosen because of a belief that organizations of that size have the administrative capacity to set and enforce the standards. The comment period could help regulators understand the administrative burden the rule could have on smaller employers — among other tangible effects.

Experts have told The Business Journals that even large organizations will face new burdens and obstacles from the rule, such as religious and medical accommodation requests, issues with verifying vaccination status on an ongoing basis and questions over the testing component.