Off again, on again

The U.S. Occupational Safety and Health Administration (OSHA) is embroiled in litigation over its COVID-19 vaccination and testing Emergency Temporary Standard (ETS). On the day the ETS was released (Nov. 4, 2021) but not yet published (That occurred Nov. 5.), a number of covered employers, states, religious groups and individual citizens jointly filed suit in the U.S. Court of Appeals for the Fifth Circuit, challenging the ETS and asking the court to stay and permanently enjoin the ETS. Various other groups and states also filed similar suits in federal courts around the country, challenging the ETS on statutory and constitutional grounds. The U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s enforcement of the ETS and ordered OSHA to “take no steps to implement or enforce” the ETS until further notice from the court.

OSHA continued its efforts to get the stay lifted before the Dec. 6 deadline, filing an emergency motion Nov. 23.

Meanwhile, the various lawsuits were consolidated and a lottery was held to select the court to hear arguments. The U.S. Court of Appeals for the Sixth Circuit in Cincinnati was selected to decide the enforceability of the ETS.

The stay was continued for the time being, and the Sixth Circuit set an expedited briefing schedule, while OSHA announced it would suspend its enforcement efforts of the ETS nationwide as it awaited the litigation developments.

While the first compliance deadline under the ETS was Dec. 6, 2021, the court’s briefing schedule included motion response deadlines until Dec. 10, 2021.

Dec. 17, a three-judge panel dissolved the stay, and OSHA implemented new compliance dates: Covered employers must now comply with the ETS by Jan. 10 and testing of unvaccinated employees must begin on or before Feb. 9.

Who is covered by the ETS?

The ETS covers private employers with 100 or more full- or part-time employees. The ETS does not apply to work sites or employees of an employer who already are covered by vaccine mandates applicable to federal contractors or health care workers at facilities partaking in Medicare and Medicaid, both of which do not provide for a weekly testing option. Additionally, employees of an employer who work remotely 100 percent of the time and do not come in contact with co-workers or the employer’s customers/clients and employees who work exclusively outdoors are exempt from coverage.

What does the ETS Require?

The ETS sets out a number of requirements for affected employers:

• Covered employers must establish, implement and enforce a written mandatory vaccination policy requiring employees to be fully vaccinated or a policy that provides employees with the choice of either getting fully vaccinated or undergoing a weekly COVID-19 test and wearing a face covering when indoors at the workplace or occupying a vehicle with one or more individuals for work purposes (except in certain circumstances). The ETS does not require employers to pay for the testing or face coverings.
• The vaccination policy must require all employees to be vaccinated, including new employees, who must do so as quickly as practicable. Exempted from such mandatory vaccinations are those employees for whom a vaccine is medically inadvisable, where medical necessity requires a delay or where the employee is legally entitled to a reasonable accommodation for a disability or sincerely held religious belief, practice or observance.
• Employers are required to verify vaccination status of employees.
• Employers must provide up to four hours of paid time to allow employees to receive a vaccination dose.
• Employers must provide reasonable time and paid sick leave for employees to recover from side effects they could experience.
• Employers must ensure unvaccinated employees undergo COVID-19 testing at least weekly (if the employee is present in the workplace at least once a week) or within seven days before returning if they are away from the workplace for a week or longer.
• Employers must require their employees to promptly notify the employer when they receive a positive COVID-19 test result or are diagnosed with COVID-19 by a licensed health care provider. If an employee tests positive or is diagnosed with COVID-19, the employer must immediately remove the employee from the workplace (regardless of the employee’s vaccination status). The ETS sets forth return-to-work criteria that must be met before employees can return to work.
• The ETS also contains a recordkeeping component that requires employers to maintain records of each employee’s vaccination status, a copy of acceptable proof provided by the employee of his or her vaccination status (as defined under the ETS) and a roster of each employee’s vaccination status. Employers also should keep records of all accommodation requests and the determination made regarding all requests. Employers also must maintain a record of each COVID-19 test result submitted by each employee. These records are considered employee medical records and should be maintained separately from the employee’s personal file and kept confidential.
• Employers must provide each employee with information in a language the employee understands about the ETS requirements; the employer’s policies and procedures established pursuant to the ETS; vaccine efficacy, safety and the benefits of being vaccinated; protections against retaliation and discrimination; and criminal penalties for providing false statements or documentation.
• Employers must report employee work-related COVID-19 fatalities to OSHA within eight hours of learning of the fatality.
• Employers must report all employee work-related COVID-19 hospitalizations to OSHA within 24 hours of learning of the hospitalization.

What’s next for employers?

OSHA has said it will issue citations to employers for noncompliance in an amount up to $13,653 for each serious violation. If the violation is willful or repeated, the penalty is capped at $136,532. For willful recordkeeping violations, OSHA could issue a per-instance citation or instance-by-instance citations.

The ETS is a priority for OSHA as it is for the Biden administration. We also know a virtual tug of war is being played between OSHA and conservative state governors, some of whom have pushed through laws prohibiting vaccine mandates. States that have to date passed anti-vaccine mandate laws regarding private employers or that have governors who have issued executive orders regarding the same include Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Montana, New Hampshire, Ohio, Oklahoma, Tennessee, Texas and Wyoming.

Also, the U.S. Supreme Court announced in late December 2021 that it will hold a special hearing this month to assess the legality of the mandate.

(States that have to date passed anti-vaccine mandate laws regarding private employers or whose governors have issued executive orders regarding same include Arkansas, Arizona, Alabama, Florida, Georgia, Indiana, Montana, New Hampshire, Ohio, Oklahoma, Tennessee, Texas and Wyoming.) If the OSHA ETS is upheld, conflicting state anti-mandate laws likely would be preempted by federal law.

Employers are caught in the middle in this legal battlefront where the federal government is requiring mandatory vaccines or weekly testing and state governments are prohibiting it. The best practice for employers is to move forward with trying to comply with the ETS. Employers should get their vaccine/weekly testing policies ready to be implemented. Employers should consult with employment attorneys to determine the best method for complying with the OSHA ETS as well as any requirements under state law.

Lillian C. Moon is a partner at Akerman LLP in Orlando, Florida. She can be reached by email at lillian.moon@akerman.com.