OSHA’s new vaccination requirement for employers with 100 or more employees

Date Posted: 11/05/2021

UPDATE JANUARY 13, 2021 — Thursday afternoon, the U.S. Supreme Court released an opinion indicating that larger employers need no longer comply with the OSHA emergency temporary standard (ETS) requiring that employees either 1) get vaccinated or 2) mask and test weekly. The 6-3 ruling indicated that the rule, was no “everyday exercise of federal power,” and that the OSH Act did not authorize the mandate, as it was more of a public health measure; that COVID-19 is not an occupational hazard in most workplaces.

“Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly ex¬pand OSHA’s regulatory authority without clear congres¬sional authorization.” The ruling went on to say that OSHA doesn’t lack authority to regulate occu¬pation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. OSHA could, for example, regulate researchers who work with the virus, or regulate risks associ¬ated with working in particularly crowded or cramped en¬vironments.

Employers had argued that the man¬date would force them to incur billions of dollars in unrecov¬erable compliance costs and cause hundreds of thou¬sands of employees to leave their jobs, and OSHA argued that it would save over 6,500 lives and prevent hundreds of thousands of hospitalizations. The Supreme Court, however, said their role was not to weigh such tradeoffs.

If such a mandate were to be proposed, it would need to come from the states and Congress.

Dissenters pointed to the large number of people the virus has killed and hospitalized, making it a grave danger. In workplaces, more than anywhere else, individuals have little control over the unparalleled risk.

While the ETS is currently stayed, OSHA could appeal to the 6th Circuit for a hearing on the merits. It could also rework the rule and resubmit it.

Employers may, however, still have vaccine mandates, with consideration to employees who request medical or religious accommodations.

In related news, the injunction against the vaccine mandate for health care facilities that receive Medicare and Medicaid funding, however, was lifted. Those employers will need to comply with that mandate.

 

UPDATE DECEMBER 20, 2021 — On Friday, Dec. 17, the 6th Circuit Court of Appeals lifted the stay of the OSHA Test-or-Vaccinate Emergency Temporary Standard (ETS). This means the ETS, which applies to employers with 100 or more workers, is now effective.

However, a Labor Department spokesperson says OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard's testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

More Legal Battles?

Several groups have already filed a petition with the U. S. Supreme Court for an emergency stay of the rule. We expect a quick ruling, but we don't know a specific date, or what the end result will be. So for now, the ETS is in effect ... with a grace period for employers to come into compliance.

Covered employers are advised to start preparing for the rule, and to track the Supreme Court litigation closely.

 

UPDATE NOVEMBER 17, 2021 — 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, published on November 5. The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order.” OSHA appealed that decision to a multi-circuit panel, who, on Nov. 16, consolidated all petitions from all circuits against the ETS into one case to be heard by the Sixth Circuit Court of Appeals.

Currently, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. Once the Sixth Circuit rules, the case will likely head to the Supreme Court. We will update this article with any new developments.

 

Update November 8, 2021 — Court temporarily halts OSHA Test-or-Vax ETS

It didn’t take long for legal action to be filed against OSHA’s Emergency Temporary Standard (ETS), requiring businesses with 100 or more employees to require employees to be 1) fully vaccinated, or 2)  undergo weekly testing and wear a face covering indoors. Several businesses filed a petition in the Fifth Circuit Court of Appeals, arguing OSHA overstepped its Constitutional authority in issuing the rule.

The court agreed to temporarily halt the rule, until both sides can present their arguments. OSHA must respond by the end of day today (11/8), and the petitioners then have until the end of the day tomorrow (11/9) to respond.

The court will likely rule quickly, given the nature of the issue. No matter which way the court rules, the decision is likely to be appealed. To complicate matters, several suits have been filed in other jurisdictions. These cases may ultimately be consolidated with the Fifth Circuit case and heard before a special counsel of judges or the Supreme Court. So, for now, it’s a waiting game that will likely see rulings and appeals for the next couple of weeks.

Practically, it doesn’t change the scheduled enforcement of the rule, so long as all is settled prior to the first compliance date of December 5. Businesses should definitely not assume the rule will be tossed out. There’s a decent chance that after the dust settles it will still stand. If so, it will be effective immediately, likely with the original compliance dates still the same. Businesses should at least plan their implementation strategy, in case the rule does survive the legal challenges. You don’t want to try to put together your policies and plans hurriedly.

 

Original Article from November 5, 2021 — On November 4, 2021, OSHA issued a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) to require employers with 100 or more employees (company-wide) to ensure workers are vaccinated by January 4, 2022, or, if unvaccinated, undergo weekly testing and wear face coverings while indoors.

The rule covers more workers than anticipated, as OSHA chose to include remote/home-office workers in the determination of coverage under the rule (i.e., the “100+ worker” scope). However, these workers do not have to be included in the vaccination/testing policy.

As expected, the rule requires employers to pay for time off to receive the vaccine or deal with side effects. OSHA says that in most cases, two days of paid leave would be the maximum employers need to provide for adverse reactions.

Employers do not, however, have to pay for tests or time off for testing; nor do they need to pay for face coverings.

All the provisions except for those involving testing are effective December 5, 2021. The testing requirements are effective January 4, 2022. As an ETS, the requirements will be in effect for 6-months, at which time OSHA must decide whether to proceed with a permanent rulemaking process.

Note: The ETS serves as a proposed rule for such a final standard. States with approved OSHA plans must adopt similar requirements.

Legal challenges

Many parties have signaled plans to challenge the ETS either through the courts or through legislation. Employers should pay close attention to the status.

OSHA did try to combat some of these preemptively by including language in the ETS that says state and local governments cannot override the ETS by enacting bans or limits on employers’ authority to require vaccination, face covering, or testing.

Major requirements

In addition to creating the vaccination/testing policy, employers must also:

• Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status. Without proof of vaccination, employees are not considered fully vaccinated.
• Ensure each worker who is not fully vaccinated is tested at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer). Home testing is allowed, but only if observed by the employer or an authorized telehealth proctor.
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a positive diagnosis. Employers must then remove the employee from the workplace, regardless of their vaccination status; employers must not allow them to return to work until they meet required criteria. Employers need not pay employees for this time off.
• Report work-related COVID-19 hospitalizations within 24 hours of learning about them, and report work-related fatalities within 8 hours of learning about them. Note:  Employers are required to report a COVID-19 in-patient hospitalization or fatality that occurs at any time after a work-related incident (i.e., exposure). Unlike the general serious injury reporting requirement, reporting is not limited by time of exposure and the time of hospitalization or fatality. In other words, if a worker is exposed to COVID-19 on the job, but isn’t hospitalized until five days after the exposure, the employer would still have to report the hospitalization within 24 hours of learning of it.
• Maintain testing records as “medical records,” but they only must be kept while the ETS in in place.
• Upon request, provide OSHA or employees with the aggregate number of fully vaccinated employees at the workplace, along with the total number of employees at that workplace within four hours of a request.
• Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
   

Training

The ETS also requires employers to provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS. In addition, information must be provided on:

• Vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”);
• Protections against retaliation and discrimination; and
• Laws that provide for criminal penalties for knowingly supplying false statements or documentation.
   

What about accommodations?

Employees may request medical or religious accommodations from the vaccination or testing requirements. Employers are urged to follow applicable guidance from the EEOC and legal counsel.

Conclusion

This is one of the most broad-reaching OSHA rules ever published. It is also one of the more controversial. However, unless the courts or Congress step in, employers will need to comply with the applicable requirements. Given the nature of the rule, employers should start sooner rather than later crafting their policies and plans for implementation.

 

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