OSHA’s New Vaccine Rules Hang in the Balance, but Employers Should Still Develop a Plan

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The federal Occupational Safety and Health Administration (OSHA) published its expected Emergency Temporary Standard (ETS) regarding vaccine mandates for US businesses on November 5, 2021. OSHA determined that its ETS—which overrides state and local laws regarding vaccination, face coverings, and testing—is necessary because COVID-19 presents a grave danger to employees and the ETS is both technically and economically feasible for employers to implement. The ETS has been challenged in court, and on November 6, the Fifth Circuit Court of Appeals halted enforcement of the ETS pending further litigation.

Who Is Impacted by the ETS?

Employers with 100 or more employees are considered “covered employers” under the ETS. Employees who work exclusively remotely, outdoors, or in workplaces where they are alone are not subject to the ETS vaccine and testing requirements. Such workers are nevertheless counted toward the 100-employee threshold to determine whether a business is a covered employer.

What Does the ETS Require?

  • Vaccination of all employees

The ETS requires covered employers to develop, implement, and enforce a policy requiring all employees to be “fully vaccinated” (defined as two weeks after completing a full vaccination course) against COVID-19. An employer’s policy must allow for exceptions for those who cannot receive the vaccine for medical reasons, or who are entitled to accommodations due to disability-related or religious reasons.

Once vaccinated, employees must provide employers with a written attestation confirming details of their vaccination status (such as the name of the vaccine administered, dates of administration, and the name of the clinic at which the vaccine was received) and confirm that such information is true and accurate or be subjected to criminal penalties.

Employers must maintain records of the vaccination status of each employee, including whether the employee is fully or partially vaccinated, along with proof of such vaccination.

  • Vaccination-related paid leave

Employers are also obliged to provide paid leave (up to 4 hours, including travel time) to allow an employee to obtain a vaccination as well as a “reasonable” amount of paid sick leave to allow employees to recover from side effects of each vaccination dose.

  • Testing and face coverings for employees who are not fully vaccinated

Employers must ensure that employees who are not fully vaccinated are tested for COVID-19 at least once every 7 days and provide such results to their employers, who must maintain records of each test result. Per the ETS, tests musts must be FDA-cleared and may “not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.”

While the ETS neither requires nor prohibits employers’ payment of costs associated with testing, employers may be required to pay for tests by other laws or agreements. Employees that are not fully vaccinated are also obliged to wear face coverings that must meet particular criteria set forth in the ETS (e.g., two or more layers of fabric fitting snugly over the nose and mouth without large gaps).

When Must Employers Comply with the ETS?

The compliance deadline, if any, remains to be seen. The ETS originally took effect on November 5, 2021, with employers to comply with most of its provisions by December 6, 2021. It was to remain in effect through the earlier of six months or until OSHA determined that a grave danger from the virus no longer existed.

However, as predicted, the ETS was promptly subjected to numerous legal challenges. A temporary restraining order prohibiting enforcement of the ETS was granted by the Fifth Circuit Court of Appeals on November 6, 2021. The court continued its stay of the ETS indefinitely on November 12, 2021, pending further litigation.

In its orders, the Court stated that it believed there were "grave statutory and Constitutional issues presented by the ETS.” It further stated that the Occupational Safety and Health Act was not intended to allow OSHA to make such far-reaching pronouncements on matters of public health, and that the ETS “imposes a financial burden upon [employers] by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.”

These legal challenges are not unique to this ETS; the majority of Emergency Temporary Standards, including the most recent ETS issued in 1983 on employee asbestos exposure, have been overturned by courts.

Given the Legal Challenges, Should Employers Ignore the ETS Requirements?

Even if employers are not ultimately subject to the requirements of the current ETS, almost all employers should implement a policy on vaccination and ongoing testing to ensure the health and safety of workers and customers. This is especially true for businesses that are customer-facing.

The fact that the ETS has been temporarily stayed does not mean that employers are absolved of the need to keep their workforces safe. It likely signals that businesses will have latitude in determining the mechanics of their own vaccination and testing policies. There remains a strong business case for encouraging vaccination and testing among workers, regardless of legal requirements.

As always, confer with knowledgeable employment counsel if you have questions about developing COVID policies in your workplace, including vaccine mandates.