Vaccine mandate remains on hold

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 very day the ETS was released (Nov. 4) 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. 

The 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 will decide the enforceability of the ETS. Meanwhile, the stay has continued, the Sixth Circuit has set an expedited briefing schedule and OSHA announced that it would suspend its enforcement efforts of the ETS nationwide as it awaits litigation developments. 

While the first compliance deadline under the ETS is set for Dec. 6, the court’s briefing schedule includes motion response deadlines until Dec. 10, 2021. As such, the court will not reach a determination on or before the initial ETS compliance deadline. However, OSHA has continued its efforts in getting the stay lifted before the Dec. 6 ETS deadline and filed an emergency motion asking that the court lift the stay. If the court grants the motion, then it’s possible that OSHA will renew its enforcement efforts and hold employers to the original deadlines set forth in the ETS.

This litigation holding pattern where the court essentially has pushed the “pause” button but could hit “play” at any time has left employers caught in the middle, not knowing whether they should continue in compliance efforts or take a wait-and-see approach.

Who is covered by the ETS?

The ETS covers private employers with 100 or more full-time 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 into 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?

• Covered employers are required to 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 mandatory vaccination policy must require that all employees be vaccinated, including new employees, which must do so as soon as practicable. Exempted from such mandatory vaccinations are those employees for whom a vaccine is medically inadvisable; 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 the vaccination status of each employee.
• 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 experience from any vaccination dose.
• Employers must ensure that 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 to work 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 such employees can be returned 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 accommodation 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 that 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 to OSHA.
• All employee work-related COVID-19 fatalities must be reported to OSHA within eight hours of learning of the fatality.
• All employee work-related COVID-19 in-patient hospitalizations are required to be reported to OSHA within 24 hours of learning of the hospitalization.

What are the compliance deadlines?

The ETS provides that all the requirements except for testing must be complied with by Dec. 6. The testing requirement has a compliance deadline of Jan. 4, 2022.

What are the penalties for noncompliance?

OSHA will issue citations for noncompliance in an amount up to $13,653 for each serious violation. If the violation is willful or repeat. The penalty is capped at $136,532. Additionally, for willful recordkeeping violations, OSHA may issue a per-instance or instance by instance citations for failure to record.

Should employers pause compliance efforts awaiting the court’s determination?

There are no simple answers here. OSHA continues to take the position that it not only has the authority to enact the ETS but also that covered employers need to comply with the ETS requirements. And given that there is no surety as to when the court will rule on the merits of the arguments presented in the consolidated suit or if in the meantime the court will lift the stay, it is unknown whether the Dec. 6 and Jan. 4 ETS compliance deadlines will remain in place or be extended. If they’re extended, it’s unknown by how long—it could be just a few days or much longer—or when OSHA will renew its enforcement efforts.

What we do know is that the ETS is a priority for OSHA as it is for the Biden administration. And we also know that a virtual tug of war is being played between OSHA and conservative state governors, who are not only suing the agency but also have pushed through laws in their states prohibiting vaccine mandates. States which have to date passed anti-vaccine mandate laws regarding private employers or whose governors have issued executive orders regarding the 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 would likely be preempted by federal law. But, until that time, such laws add to the complexity of the limbo in which employers find themselves.

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 and the least risky at this point is to move forward with trying to comply with the ETS. At the very least, employers should get their vaccine/weekly testing policies ready to be implemented. Additionally, employers should consult with their employment attorneys to determine the best method for simultaneously complying with the OSHA ETS and any state law requirements.

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