Update on challenges to the OSHA vaccine ETS

UPDATE (12/18/21): The stay on the OSHA Emergency Temporary Standard has been lifted. Details here.

As most of our readers know, the Occupational Safety and Health Administration issued an Emergency Temporary Standard on November 5 that required most employers with 100 or more employees to require virtually all of their employees to be vaccinated against COVID-19. As an alternative, covered employers could allow employees to “opt out” of vaccination, but the unvaccinated employees would have to be tested for COVID every seven days.

Most of the ETS was scheduled to take effect this coming Monday (December 6), but the weekly testing requirement for unvaccinated employees was scheduled to take effect on January 4.

The day after the ETS was issued, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit stayed (paused) the ETS. The U.S. Department of Labor filed a motion to have the stay lifted, but on November 12, the same Fifth Circuit panel refused to lift the stay. The following week, all of the lawsuits nationwide challenging the ETS were consolidated and assigned to the U.S. Court of Appeals for the Sixth Circuit. And OSHA announced on its website that it would not enforce the ETS until the court challenges were resolved.

Until the Sixth Circuit makes a ruling, the Fifth Circuit stay will remain in place.

On November 23, the DOL asked the Sixth Circuit to lift the Fifth Circuit stay. However, the Sixth Circuit has issued a briefing schedule that would preclude it from issuing a ruling on the DOL motion before December 10. This means that the December 6 deadline of the ETS appears to have been effectively postponed.

What should employers be doing?

The December 6 deadlines for employers covered by the ETS were as follows:

• Put together a written company policy on vaccination.

• Determine which employees are vaccinated and which are not.

• Obtain proof of vaccination from the vaccinated employees, and maintain records and a roster of vaccination status.

• “Provide support” for vaccination.

• Require employees to notify the company promptly if they test positive for COVID or are diagnosed with COVID.

• Require employees who have not been fully vaccinated to wear proper face coverings when indoors or in a vehicle with another person for work purposes.

• Provide all employees with information about the vaccine mandate and how the company intends to respond, as well as other information (including legal penalties for providing false information).

• Make arrangements for reporting to OSHA any work-related COVID fatalities or inpatient hospitalizations within 24 hours.

We recommend that employers do the following while the stay remains in effect:

• Determine whether to mandate vaccination (making exceptions only for employees who qualify for reasonable accommodations of medical conditions or religion), or whether to allow employees to opt out of vaccination for other reasons, provided that they are willing to undergo weekly COVID testing.

• If you don’t already have one, create a process for dealing with reasonable accommodation requests.

• If the decision is to mandate vaccination with only the exceptions required by law, then announce that to employees, determine how best to maintain records of vaccination, and begin gathering proof of vaccination. With unvaccinated employees, provide a deadline by which they must be fully vaccinated, and determine whether to place non-compliant employees on indefinite leaves of absence or to terminate their employment. Take all of the other steps required to be in compliance with the December 6 deadline (even though it may not be taking effect until later, if ever).

• If the decision is to allow employees to opt out of vaccination, announce that decision to employees, determine how best to maintain records of vaccination, and begin gathering proof of vaccination. Depending on the number of unvaccinated employees you anticipate, determine whether you want the weekly COVID testing and recordkeeping to be performed “in house” or by a vendor. If the latter, begin shopping for a vendor who can perform the weekly COVID tests and maintain the test records for you, but do not sign any contracts that are irrevocable. Delay telling unvaccinated employees that they will be subject to weekly testing unless you planned to require that with or without the ETS.

• In either case, begin drafting a vaccination policy that complies with the ETS requirements.

• Prepare all other written materials required by the ETS.

• Prepare for the requirement to report COVID-related fatalities and inpatient hospitalizations to OSHA.

At this point, the first set of ETS requirements is virtually certain not to take effect on Monday. Moreover, if the stay is not lifted by December 20 (ten business days before January 4), the weekly testing requirement is unlikely to take effect on that date.

But these delays do not necessarily mean that the Sixth Circuit won’t eventually lift the stay, allowing the ETS to take effect. That is why it may be best for employers to prepare for the worst.

For a printer-friendly copy, click here.