On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard. The court ordered that OSHA "take no steps to implement or enforce" the Temporary Standard "until further court order." Thereafter, OSHA suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. On December 17, 2021 the U.S. Court of Appeals for the Sixth Circuit dissolved the stay through a multi-district litigation process. The day after that decision was issued, OSHA announced that it will not issue citations for noncompliance with the ETS requirements before January 10, 2022 and that the standard's testing requirements will not be enforced until February 9, 2022, so long as a reasonable, good faith effort to comply with the standard exists. An emergency application to the U.S. Supreme Court was filed shortly thereafter.
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The guidance will be officially published in the Federal Register on November 5th.
Under the ETS, employees of private businesses with 100 or more employees will be required to either be fully vaccinated by January 4, 2022, or submit to weekly testing. Separate rules apply to federal contractors, and a separate Centers for Medicare and Medicaid Services (CMS) rule applicable to many healthcare workers mandates that those workers be vaccinated without an option for weekly testing.
Covered employers must implement mandatory vaccination policies unless testing and face masks are adopted as alternatives. More specifically, the ETS requires each covered employer to establish and implement a written mandatory vaccination policy unless the employer adopts an alternative policy requiring COVID-19 testing and face coverings for unvaccinated employees. To meet the definition of "mandatory vaccination policy," the policy must require: vaccination of all employees, including all new employees as soon as practicable, other than those employees (1) for whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination, or (3) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely-held religious beliefs, practices, or observances that conflict with the vaccination requirement.
Although OSHA requires covered employers to implement mandatory vaccination requirements, the ETS provides an alternative where employers may instead adopt a policy that allows employees to choose either to be fully vaccinated or to be regularly tested and wear a face covering. The guidance also requires all covered employers to remove from the workplace any employee who tests positive for COVID-19 or receives a diagnosis of COVID-19.
Time off required for vaccination and recovery from side effects. Under the ETS, covered employers must pay employees for time off to be vaccinated of up to and including four hours and provide reasonable time and paid sick leave for employees to recover from any vaccination side effects.
Employees working for employers with an alternative policy who choose not to be vaccinated must be tested weekly and wear face masks in the workplace. If an employee, who works for an employer with an alternative policy, declines to be vaccinated and opts for weekly testing instead, the employer is not required to pay for the testing or the use of face coverings. (However, employers should be aware of any other federal or state laws or collective bargaining agreements that may require otherwise.) Employees who choose not to be vaccinated must wear face masks indoors and when sharing a vehicle with a coworker.
The ETS is intended to preempt state and local law. According to the ETS, it will preempt inconsistent state and local requirements, including requirements that ban or limit employers' authority to require vaccination and will therefore provide the necessary legal authorization to covered employers to implement mandatory vaccination policies, if they choose to comply in this preferred manner.
Effective date. The federal government can largely enforce safety rules against private employers in twenty-nine states plus the District of Columbia. The twenty-nine states subject to Federal OSHA are: Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, West Virginia, and Wisconsin. In these states, the ETS will become effective on November 5th, when it is published in the Federal Registry.
The remaining 21 states have approved "state plans," where a state agency enforces safety regulations in that jurisdiction. In those states, when Federal OSHA promulgates an ETS, states with their own OSHA-approved occupational safety and health plans must either amend their standards to be identical or "at least as effective as" the new standard, or show that an existing State standard covering this area is "at least as effective" as the new Federal standard. Adoption of the ETS, or an ETS that is at least as effective as this ETS, by State Plans must be completed within 30 days of the November 5th publication date, and State Plans must notify Federal OSHA of the action they will take within 15 days.
Stay tuned for more. Several State Attorneys General and other groups have already announced their intention to challenge the ETS. Nonetheless, covered employers should move forward with their analyses on how the ETS will impact their workplaces. Questions or concerns about implementation of the ETS should be addressed with appropriate legal counsel.
The intent of this analysis is to provide general information regarding the provisions of current federal laws and regulation. It does not necessarily fully address all your organization's specific issues. It should not be construed as, nor is it intended to provide, legal advice. Your organization's general counsel or an attorney who specializes in this practice area should address questions regarding specific issues.