Many of you are aware that OSHA issued its Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to implement a plan and policy for employee vaccination and/or weekly testing on November 4, 2021. The ETS was effective on November 5, 2021, and various challenges to the legitimacy of the rule were filed immediately. Eventually, there were over 27 petitions filed by various states, business organizations and others in the federal circuit courts of appeal across the country.
On November 6, the Fifth Circuit Court of Appeals issued an order pausing implementation of the rule (i.e., an order staying enforcement of the OSHA rule). Instead of having cases litigated with different outcomes around the country, the federal court system consolidated the cases and assigned them to the Sixth Circuit Court of Appeals located in Cincinnati. Since that time, the Sixth Circuit considered arguments to allow the pause to continue or to be lifted, as well as whether to expedite the litigation process.
In an unexpected development, the Sixth Circuit issued a determination on Friday, December 17, dissolving the stay order and allowing the rule to take effect. The Court ruled that “[t]he harm caused by keeping the emergency temporary standard frozen outweighs any damage that would stem from letting it go into effect,” and found that OSHA satisfactorily “demonstrated the pervasive danger that COVID-19 poses to workers – unvaccinated workers in particular – in their workplaces.” The Sixth Circuit did not address how its decision would impact the timing of the ETS’s vaccination and testing and requirements, which were originally set to go into effect December 6, 2021, and January 4, 2022, respectively.
The day after the Sixth Circuit’s decision, OSHA announced that it will not issue citations for noncompliance with the ETS requirements before January 10, 2022, with the exception of the standard’s testing requirements, which will not be enforced until February 9, 2022, so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard. So while the ETS is now in effect, OSHA will not enforce its requirements until the dates noted above.
Several petitioners immediately filed an emergency request with the U.S. Supreme Court to once again pause the enforcement of the OSHA rule. Therefore, it’s possible the landscape surrounding the ETS could change yet again.
In the meantime, barring an order from the U.S. Supreme Court reinstating the stay of the ETS, employers covered by the ETS should use this time to make the necessary plans, if they have not done so already, for complying with the requirements of the ETS. These requirements include:
- Development, implementation, and enforcement of a mandatory vaccination policy, with an exception for employers to establish, implement, and enforce a policy allowing for employees to elect to undergo weekly testing and wear a face covering in the workplace. The employer is not obligated to pay for the costs of testing for employees who elect that option. Unvaccinated workers must wear masks while indoors or while driving for work with another occupant in the vehicle. OSHA has provided sample policy templates depending on which option an employer chooses. https://www.osha.gov/coronavirus/ets2.
- Providing employees “reasonable time,” including up to four (4) hours paid time, to receive any required vaccine dose, as well as paid sick leave to recover from any side effects following each vaccine dose. OSHA has indicated that employers would be allowed to set a cap on the time provided to employees to recover from side effects, so long as it is reasonable, noting that it presumes that 2-days of paid sick leave per vaccination dose would satisfy the ETS requirements.
- Covered employers must determine the vaccination status of all employees, obtain sufficient proof of vaccination, and maintain records of vaccination and a roster of each employee’s vaccination status.
- Procedure for employees seeking certain exemptions from vaccination or other requirements on the basis of disability and/or sincerely held religious belief.
- Covered employers must continue to adherence to COVID-related safety protocols for those employees testing positive (i.e., removal from the workplace and quarantine protocols).
- Twenty-two states with OSHA-approved plans, including Indiana, are required to accept the standard as written, modify the standard or propose an equivalent or more protective rule. These states will have a period of 30 days in which to adopt a comparable standard.
Failure to implement and/or enforce the requirements of the ETS could result in potential citation and/or fines of up to $13,653 for each serious violation. Willful violations could result in a fine as high as $136,532. The OSHA standard can last up to six (6) months, after which it must be replaced with a permanent federal regulation. It is anticipated that several challenges will be made to the legality of the ETS.
The published rule is available at https://www.federalregister.gov/public-inspection/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard. OSHA has also published a summary and fact sheet available at https://www.osha.gov/coronavirus/ets2 addressing the various components of the ETS.
In the meantime, OSHA is currently accepting public comments on the development of a permanent standard through January 19, 2022, which can be submitted to www.regulations.gov (Docket No. OSHA-2021-0007). Some of the areas on which comments are being solicited include:
- Whether the ETS should be made a permanent standard?
- Whether small employers (i.e., <100 employees) have administrative capacity to implement a vaccine requirement?
- What “significant risks” should be addressed in any permanent standard?
- Whether prior COVID infection should be considered as part of the standard?
We will continue to monitor any further developments regarding implementation and enforcement of the ETS. The attorneys in the Labor and Employment Group of Bose McKinney & Evans are available to answer your questions and provide guidance regarding the impacts of these changes.