On December 17, 2021, the U.S. Sixth Circuit Court of Appeals lifted the preliminary legal hold on the OSHA COVID-19 (coronavirus) emergency temporary standard (ETS) for employers with 100 or more employees. This means that OSHA’s regulation requiring employees of covered employers to be vaccinated against COVID-19 or undergo weekly testing is in effect once again (In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 6th Cir, Dec. 2021).
For details on OSHA’s regulation, see our original Alert: OSHA releases vaccine mandate for employers with 100+ workers (11/4/21). We later reported that the U.S. Fifth Circuit Court of Appeals placed a preliminary hold on the regulation. Parallel legal challenges were filed in every court of appeals across the country, so a lottery system was held to determine which court would handle all of the combined litigation. The Sixth Circuit “won” the lottery and has now countermanded the Fifth Circuit’s order. OSHA’s rule is therefore reinstated while the combined case works its way through the court system.
OSHA issued a press release on December 18, 2021, stating, “To provide employers with sufficient time to come into compliance, OSHA 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.”
When OSHA’s ETS was officially published on November 5, 2021, it said that states with their own safety and health agencies (such as Arizona, California, Oregon, and Washington), had 30 days to either adopt the federal rule or publish their own rule, which had to be at least as effective as OSHA’s ETS. We don’t yet know what new timeframe OSHA will set for the states to make this decision, or how the states will respond. Subject to further legal developments, here’s how OSHA’s extended timelines will apply in states such as Idaho and Montana that don’t have their own safety and health agencies:
January 10, 2022:
- Establish a written vaccine policy (OSHA offers two alternative templates to get you started: a Mandatory Vaccination Sample for covered employers who intend to require vaccines for all workers and a Vaccination or Testing and Face Covering Sample for employers who intend to allow workers who don't want to be vaccinated to be regularly tested and wear face coverings instead).
- Maintain a roster showing each employee’s vaccination status and preserve copies of vaccination records provided by employees.
- Grant reasonable time off for employees to obtain their primary COVID-19 vaccination doses and pay for up to 4 hours at their regular rate for each dose. (The rule doesn’t require booster shots or require you to pay for time off to get boosters.)
- Provide reasonable time off and paid sick leave to recover from vaccine side effects (up to two days for each dose).
- Require employees to notify you if they test positive for COVID-19 or are diagnosed with COVID-19 by a licensed health care provider, so you can remove them from the workplace.
- Follow OSHA rules on return to work after a positive COVID-19 test or diagnosis.
- Require employees who aren’t fully vaccinated to wear a face covering when indoors or when occupying a vehicle with another person for work purposes, with limited exceptions.
- Give specific information to employees explaining the ETS, company policy, employees’ legal protections, and criminal penalties for knowingly giving false statements. You must also provide a CDC document to your employees, Key Things to Know About COVID-19 Vaccines.
- Notify OSHA of a work-related COVID-19 fatality within 8 hours of learning of the fatality and notify OSHA of each work-related COVID-19 in-patient hospitalization within 24 hours of learning of the hospitalization, regardless of how many days or hours have passed since the work-related incident that caused the fatality or hospitalization.
- Respond to requests for records. Among other things, if employees or their representatives request the total number of fully vaccinated employees at a workplace and the total number of employees at the workplace, you must make the records available by the end of the next business day after the request.
February 9, 2022:
- Ensure employees who aren’t fully vaccinated and who report to work at least once every 7 days where others are present are tested for COVID-19 at least once every 7 days and give you updated test results no later than 7 days after they last provided a test result. OSHA’s COVID-19 ETS FAQs provide guidance on the types of tests permitted. (Note: Talk with your Vigilant Law Group employment attorney to evaluate your wage and hour obligations related to testing, specifically whether you must pay for: (1) time spent traveling to and from the test; (2) time spent waiting to be tested, being tested, and waiting for the results; and (3) the cost of the test itself.)
- You must exclude employees from work if they aren’t fully vaccinated and they fail to provide the test result, unless they have been approved for a medical or religious accommodation.
- Employees who have completed their entire vaccination series by this date don’t have to be tested, even if they haven’t yet completed the two-week waiting period to be considered fully vaccinated. If an employee tests positive for COVID-19 or is diagnosed with COVID-19 by a licensed health care provider, you shouldn't require any testing for a period of 90 days after the date of the positive test or diagnosis.
Tips: The Sixth Circuit’s decision will be appealed to the Supreme Court, but we don’t know whether the Supreme Court will accept the case for review. We’ll keep members posted on any developments. In the meantime, talk with your Vigilant Law Group employment attorney if you have any questions about the ETS and see OSHA’s FAQs on the COVID-19 ETS. A key decision will be whether to mandate vaccines or allow weekly testing as an alternative. Requiring vaccination could avoid the logistical challenges of frequent testing, but could risk losing workers in a tight labor market. Allowing testing might result in fewer terminations and quits, but tracking all of the test results could be a headache.
Meanwhile, OSHA is proceeding full steam ahead with evaluating whether the ETS should become a permanent rule. The ETS took effect immediately upon publication on November 5, 2021, but OSHA also treated it as a proposal for a permanent rule and asked for comments. The comment period has been extended to January 19, 2022. This process is separate from the litigation over the ETS. If OSHA eventually publishes a permanent rule, it will likely be subject to a whole new set of lawsuits.