On January 13th, the United States Supreme Court blocked the Occupational Safety and Health Administration's (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). Under the ETS, employees of private businesses with 100 or more employees would have been required to either be fully vaccinated or submit to weekly testing. The rulings came three days after OSHA's emergency measure started to take effect.
In the ruling, the majority concluded that the Biden Administration overstepped its authority by seeking to impose the OSHA's vaccine-or-test rule on U.S. businesses with at least 100 employees.
The majority noted that "OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here." Moreover, " [a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly," the Court wrote in the unsigned opinion.
The Federal OSHA Emergency Temporary Standard (ETS) for COVID-19 was published in the Federal Register on November 5, 2021.
For those under state programs (like California), a 30-day period will be allotted for current standards to be updated to either meet or exceed the Federal requirements. Below is an overview of the key requirements of the Federal Standard along with helpful links to OSHA resources including sample policies to assist with compliance in those states under the Federal OSHA jurisdiction. We encourage those under state programs to begin preparing; however, time should be given before major policy changes are considered so it can be determined exactly how each state program will proceed. According to the ETS, key requirements include:
- The ETS generally applies to employers in all workplaces that are under OSHA's authority and jurisdiction, including industries as diverse as manufacturing, retail, delivery services, warehouses, meatpacking, agriculture, construction, logging, maritime, and healthcare. Within these industries, all employers that have a total of at least 100 employees firm or corporate-wide, at any time the ETS is in effect, are covered.
- The effective date for the ETS is November 5, 2021, which is the publication date in the Federal Register. To comply, employers must ensure provisions are addressed in the workplace by the following dates:
- December 5, 2021 (30 days after publication): All requirements other than testing for employees who have not completed their entire primary vaccination dose(s)
- January 4, 2022 (60 days after publication): Testing for employees who have not received all doses required for a primary vaccination
- The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.
- The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee's vaccination status, and maintain a roster of each employee's vaccination status.
- The ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose.
- The ETS requires employers to ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
- The ETS requires employers to:
- require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19
- immediately remove any employee from the workplace, regardless of vaccination status, who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider
- keep removed employees out of the workplace until they meet criteria for returning to work
- The ETS requires employers to ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances. Employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (e.g., interfering with the safe operation of equipment).
- The ETS requires employers to provide employees the following resources in a language and at a literacy level the employees understand:
- ETS requirements, and workplace policies and procedures established to implement the ETS
- The CDC document "Key Things to Know About COVID-19 Vaccines"
- Protections against retaliation and discrimination
- Information about criminal penalties for knowingly supplying false statements or documentation
- The ETS requires employers to report work-related COVID-19 fatalities to OSHA within eight hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
- The ETS requires employers to make available for examination and copying an employee's COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
- U.S. Court of Appeals for the Fifth Circuit filing
- Federal Contractor Mandate
- CMS Medicare Omnibus Staff Vaccine Mandate
- Gallagher's COVID-19 Pandemic Hub
- Gallagher's 2021 COVID-19 Employer Vaccine and Workplace Considerations Guide
- OSHA's COVID-19 Vaccination and Testing ETS Summary
- OSHA's COVID-19 Vaccination and Testing ETS Fact Sheet
- OSHA's COVID-19 Vaccination and Testing ETS Frequently Asked Questions
- OSHA's COVID-19 Vaccination and Testing ETS Sample Employee Choice Vaccination Policy
- OSHA's COVID-19 Vaccination and Testing ETS Sample Mandatory Vaccination Policy
As states and other governmental authorities lift the restrictions imposed around the COVID-19 pandemic, businesses are starting to prepare for reopening. The decision to reopen is a complex issue. We cannot advise you whether you should or should not reopen your business. If you decide to do so, we have generated this information for your review and consideration. It includes some high-level ideas that you may want to consider as you move through the process of opening your business. This generalized information does not take into account all of the unique and specific issues that may be involved in opening your business. If you have questions about this information or your insurance coverages, please contact your Gallagher representative.