December 20, 2021 Update
OSHA’s federal vaccine mandate regains traction as Sixth Circuit lifts stay of enforcement.
As outlined in our recent post, on Friday December 17, 2021 a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit lifted the stay on implementing the Emergency Temporary Standards to Protect Workers from Coronavirus (ETS) issued by the federal Occupational Safety and Health Administration (OSHA). While further litigation challenging the ETS and other federal vaccine mandates is anticipated, the ETS is now back in effect and will require employers with 100 or more employees to adopt either 1) a policy requiring employees to be vaccinated (except employees with medical or religious exemptions), or 2) a policy requiring employees to be vaccinated or submit to weekly COVID-19 testing. (See our initial summary below).
Also on Friday, OSHA announced that in light of the Sixth Circuit’s decision it “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.” See, https://www.dol.gov/newsroom/releases/osha/osha20211218.
Several states have already requested another immediate stay from the Supreme Court. Just today the Supreme Court issued a deadline of December 30, 2021 for the federal government to respond.
When Will We Have More Answers?
Given the expedited briefing schedule proposed by the Supreme Court, it is unlikely, but not impossible, that we would see a final ruling on the ETS before New Year’s Eve 2021 and perhaps even January 2022.
What Should Employers Do Now?
Stay ready. While much still remains to be determined, it remains a good possibility that US employers with at least 100 employees will likely be subject to a vaccine mandate by early 2022, and should be evaluating their options (see our full article below) and anticipating any logistical compliance challenges. Sample policies can be found at OSHA's website under the heading “Implementation.”
Recall also that, employers located in areas with OSHA-approved state plans, which includes Alaska, California, Oregon and Washington, may see additional guidance once OSHA’s state counterparts finalize their guidance. California has already done so.
Of course, businesses remain able to consider voluntarily adopting vaccine requirements if they wish to do so even while the federal mandates are being challenged, and regardless of whether they themselves expect to be subject to any state or federal mandate at all. We have previously outlined the key considerations involved with doing so.
As we have throughout the pandemic, our COVID-19 team will continue to monitor developments related to the ETS and provide timely updates as new rulings are issued and/or new guidance becomes available.
See our related article, Employers Stay Ready: OSHA’s Vaccine-or-Test Mandate Stalls After Federal Appeals Court Challenge, for updated information on the status of the OSHA ETS.
Original Article
On November 4th, the Occupational Safety and Health Administration (OSHA) of the Department of Labor (DOL) announced the anticipated adoption of an Emergency Temporary Standard (ETS) requiring all employers of 100 or more employees to mandate COVID-19 vaccination or regular testing of all workers.
OSHA’s announcement can be found here: https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf.
SUMMARY
By December 5, 2021, all employers of 100 or more employees must adopt a written policy that requires either:
- all employees to be vaccinated (except for those with medical or religious exemptions who must wear masks and be tested weekly for COVID-19) (a “Mandatory Vaccination Policy”), or
- all employees to be vaccinated OR wear masks and test weekly for COVID-19, regardless of why they are unvaccinated (a “Vaccinate or Test Policy”).
Employees must be required to comply by January 4th. Employers may adopt different policies for different departments or work groups.
PREEMPTION
OSHA’s ETS preempts all state and local standards on the topic, including any state or local order prohibiting vaccination mandates. The 22 states with their own OSHA-approved workplace safety and health programs may adopt rules at least equivalent to this ETS, if approved by OSHA. See https://www.osha.gov/stateplans/. This includes Alaska, California, Oregon, and Washington.
COVERED EMPLOYERS
The ETS covers all employers of 100 or more employees, except federal contractors/subcontractors and healthcare industry employers already covered by other OSHA standards mandating vaccinations with no alternative for regular testing. It also doesn’t apply to state and local governments that are subject to state plans, provided those states are required to adopt requirements for state and local governments that are at least as protective as the ETS. Employers must count all their employees wherever situated, including currently employed temporary and seasonal employees. An employer is covered if it employs 100 or more employees during the period the ETS is effective, regardless whether they are full-time or part-time.
COVERED EMPLOYEES
While all the employer’s employees count toward the 100-employee threshold, the vaccination policy need not be applied to those employees who do not report to a workplace where others are present, who work strictly from home, or who work strictly outside.
EFFECTIVE DATES
Although the ETS is effective on November 5th, it gives covered employers until December 5th (30 days) to adopt their preferred written policy. Employees must be required to comply with those requirements by January 4, 2022. January 4th is also the new date for federal contractors to comply with their vaccination mandates.
POLICY AND COMMUNICATIONS
Again, covered employers will have until December 5, 2021 to adopt a policy. OSHA has provided samples of both options, and additional resources, that are available on it’s website at: https://www.osha.gov/coronavirus/ets2.
Employers are also required to provide employees information about the ETS and access to the policy adopted “in a language and at a literacy level its employees will understand.” If the policy itself does not include it, then employees must also be provided with (1) the CDC’s “Key Things to Know about COVID-19 Vaccines;” (2) information about the available protections against retaliation and discrimination; and (3) information about “laws that provide for criminal penalties for knowingly supplying false statements or documentation.” Again, versions of these documents are included in the resources available on the website.
EXEMPTIONS
Employers’ policies should exempt from any mandatory vaccination requirement employees who fall into one or more of the following categories: (1) where vaccination is medically contraindicated (for example, where they may be allergic to any of the ingredients or suffered a prior reaction), (2) where medical necessity requires a delay in vaccination, or (3) where the employee is legally entitled to a reasonable accommodation due to a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement. The OSHA website provides a link for accommodation resources here: https://askjan.org/topics/COVID-19.cfm.
VACCINATION VERIFICATION
Covered employers must obtain verification of employee vaccinations, and the ETS prescribes the acceptable forms: (1) the COVID-19 vaccination card; (2) a medical record of the vaccination; (3) a public health record of the vaccination; or (4) an attestation by the employee that meets specific standards outlined in the ETS and only when the employee has lost or is unable to obtain other proof. Employers need not re-verify for employees who provided proof of vaccination before November 5, 2021, even if that proof would not meet current ETS requirements.
Employers must retain employee proof of vaccination (which must be filed in the confidential medical folder as with other employee medical information) and maintain a written record of vaccinated and un-vaccinated employees.
COST AND PAID TIME OFF
Vaccinations are still readily available at no-cost to employees and this rule doesn’t confer any obligation on employers to pay for vaccination even should that change. However, employers must provide up to four hours of paid time off (including travel time) necessary for an employee to receive each vaccination dose. Other accrued leave may not be used for that purpose. In addition, employers must provide reasonable paid time off for those suffering vaccination side effects that prevent them from working. Sick leave and other accrued paid leave may be used for this purpose.
Under the ETS, employers need not pay for the cost of weekly testing, unless another law or contract requires it.
TESTING
Employees who are not vaccinated but who report to a workplace where others are present must be tested at least every seven days and provide test results to the employer. Test methods must be FDA approved. Employees who do not comply must be removed from the workplace. An employee returning to the workplace from a leave or from remote work must provide a test result from with seven days prior to the date they return to work.
Employees who test positive or have been diagnosed with COVID-19 must be (a) required to notify the employer and (b) excluded from the workplace in accordance with current CDC guidelines, and are not subject to further testing for 90 days.
Test results are to be kept by the employer as confidential medical records, which also have special retention rules.
MASKS AND FACE COVERINGS
Masks or other acceptable face coverings must be worn by unvaccinated employees when indoors or in vehicles with others, except when they are alone in a room, removing the mask for a security check, or eating or drinking. Employers may not prohibit any employee or visitor from wearing a face covering or a respirator.
DISCIPLINE
As with any safety policy, the vaccination policy must be enforced. Enforcement may require employee discipline or discharge. In unionized workplaces, collective bargaining agreements might apply to discipline under the policy.
RECORDS
Employers must keep as confidential medical records all proof of vaccinations and testing results, and provide employees with access to their own records of vaccination and testing upon request.
TRANSPARENCY OF VACCINATION STATUS
Employers must be able to produce records showing the aggregate number of fully vaccinated employees at the worksite and the total number of employees at the worksite, within four hours of a request by OSHA. This same information must be provided no later than the next business day to employees and employee representatives who request it.
REPORTING WORKPLACE INFECTIONS
Employers must report workplace infections which lead to hospitalization within 24 hours, and fatalities within eight hours.
CONCLUSION
OSHA has yet to address the extension of this ETS to smaller employers, but suggested it may still do so, or possible booster shot requirements.
We hope that this snapshot of the key considerations and potential takeaways that we have outlined above is helpful to employers as they navigate these challenging issues. As always, employers should call on us if they have questions or need assistance with evaluating their approach to vaccination and implementing related policies and practices.
The content of this alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice. Readers are encouraged to check out the Miller Nash LLP COVID-19 landing page in particular for additional resources.
