Update Applicable to:
All employers with 100 or more employees.
On November 4, 2021, the U.S Department of Labor’s Occupational Safety and Health Administration (OSHA) announced a new Emergency Temporary standard (ETS) rule published in the Federal Register on Friday, November 5, 2021.
On Saturday, November 6, 2021, the 5th U.S. Circuit Court of Appeals temporarily suspended the OSHA ETS “pending further action” by the court, a stay order issued by a three-judge panel of 5th Circuit judges in New Orleans. The lawsuit was brought by state attorneys general and private employers, including filings from the governments of Texas, Louisiana, Mississippi, South Carolina and Utah, all signees on the September letter that oppose the directive and claim that either OSHA exceeded its authority or the ETS is unconstitutional. “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby stayed pending further action by this court,” the circuit court ordered. The Fifth Circuit challenge is not alone; similar cases have also been filed in the Sixth, Seventh, Eighth, and Eleventh Circuits.
What are the details?
The Fifth Circuit instructed the government to respond to the request for a permanent injunction by 5:00 p.m. on Monday, November 8, 2021, and allowed the challengers to reply to the government’s response by 5:00 p.m. on Tuesday, November 9, 2021. This means it is possible that we will hear a final decision from the Fifth Circuit in the very near future.
The Fisher Phillips law firm stated that “at the moment, the outcome of the OSHA ETS is uncertain. While OSHA must refrain from enforcing the ETS until the Fifth Circuit says otherwise, this could change in the blink of an eye if a full panel of appeals court judges removes the stay. And again, with several separate lawsuits filed in different courts challenging the ETS, it is likely that a final binding and unifying determination will not be made for weeks or even months.”
With that said, we wanted to provide a breakdown of the most important areas within the OSHA ETS so that employers can have what is needed in order to be prepared in the event the stay order is removed by the courts.
Details on the OSHA ETS:
OSHA’s ETS requires that employers with 100 or more employees will need to implement a mandatory vaccination requirement but provides an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.
- This ETS presents the implementation of a mandatory vaccination policy as a preferred compliance option and will preempt inconsistent state and local requirements that ban or limit employers’ authority to require vaccination (See “Purpose”, Section VI. A. Summary and Explanation of the ETS)
- OSHA provides further guidance on what proof of vaccination employers can obtain (See “Determination of Employee Vaccination Status”, Section VI.E. of the ETS)
- Post-January 4th, 2022, employers will be required to remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider (See ”Employee Notification to Employer of a Positive COVID-19 Test and Removal”, Section VI.H. of the ETS)
- Employers must maintain a record and a roster of each employee’s vaccination status (See “Determination of Employee Vaccination Status”, Section VI.E. of the ETS)
The ETS requires employers to support COVID-19 vaccination for each employee by providing a reasonable amount of time to each employee for vaccination and reasonable time and paid sick leave to each employee for side effects experienced following vaccination. All covered employers are required by the ETS to bear the cost of providing up to four hours of paid time and reasonable paid sick leave needed to support vaccination, but where an employee chooses to remain unvaccinated, the ETS does not require employers to pay for the costs associated with regular COVID-19 testing or the use of face coverings (See “Employer Support for Employee Vaccination ETS Requirements”, Section VI.D of the ETS)
- Regarding the pay requirement, the ETS does not offer flexibility or immunity. The ETS states “The feasibility of paying for the time is addressed in OSHA’s economic analysis…the determination focuses on whether employers would encounter obstacles in implementing payment policies that would make this requirement infeasible for the large employers covered by this ETS. OSHA has determined that there are no such obstacles.” (See “Providing Support for Vaccination”, Section IV. A. III of the ETS)
- The ETS will not require employers to pay for the testing nor to provide the testing. Outside of the ETS, there may be requirements to pay for the testing under federal/state/local laws and collective bargaining agreements
- In determining whether an employer meets the 100-employee threshold, employers must include all employees across all their U.S. locations, regardless of vaccination status or where an employee performs work. Part-time employees count towards the company total, but independent contractors do not. Additional sections of the ETS detail how the threshold should be determined in situations involving franchisees, multi-employer workplaces, and staffing agencies.
- OSHA provides details on the type of testing that will be acceptable (See “COVID-19 Testing for Employees Who Are Not Fully Vaccinated”, Section VI.G. of the ETS)
- The ETS determines that the hazard being regulated must constitute a grave danger to employees (see “Grave Danger”, Section III.A. of the ETS)
- Employers must ensure that they enforce the requirements of their policies with respect to their workforce, through training. A training provision can be found here
*Latest Update (Thursday, November 11, 2021)*
The federal government stated in its court filing Monday that the cases should be consolidated, and that one of the circuit courts where a legal challenge has been filed should be chosen at random on Nov. 16 to hear it (see below update link).
On Monday, November 8, 2021, White House spokeswoman Karine Jean-Pierre expressed confidence that the COVID-19 vaccine mandate can withstand the legal challenges. “This is an authority that we believe the Department of Labor has…Do not wait to take actions that will keep your workplace safe.” Jean-Pierre told reporters during a press briefing (Link)
Petitioners’/Challengers’ Official Response Court Document (latest document of Case: 21-60845): Petitioner’s Motion to Stay Order 11/9/2021
Federal Government Response Court Document Submitted: Federal Government’s response to stay order (November 8, 2021)
Fifth circuit court original documents:
On Monday, the California Cal/OSHA Safety and Health Standards Board posted an agenda for a November 18, 2021 meeting indicating it will discuss the adoption of a new ETS, presumably to comply with the Federal ETS requirements (Note: the meeting can be attended and has a live video stream; public comments will be taken). The agenda states that the draft regulations will be posted on Cal/OSHA’s website as soon as feasible. Generally, the states operating under a State Plan have six months to adopt a new permanent Federal standard. However, since OSHA adopted an ETS and not a permanent standard, these states, including California, only have 30 days to adopt their own ETS. (Note: there are currently 22 State Plans covering both private sector and state and local government workers, and there are six State Plans covering only state and local government workers – Link).
For more information, please see the following links below:
White House announcement
What do employers need to do?
Employers should familiarize themselves with the requirements of the OSHA ETS and prepare to implement those requirements if the stay is lifted and the emergency rule is revived.
Employers should develop an action plan that can be implemented to stay in compliance with the law and spend the coming weeks preparing for the ETS as if it will take effect, but wait to implement its measures until the final judicial outcome is certain. The earliest effective date for any of the ETS requirements is December 5, 2021, which includes the need for employers to have a vaccination policy and various other technical standards in place. The Fisher Phillips law firm advises that employers will be hard-pressed to develop these materials overnight, so employers should spend this interim limbo time efficiently and be prepared to comply should the ETS ultimately be upheld. Some of the items to prepare are:
- Adopt procedures for determining employees’ vaccination status
- Determine if you will mandate the vaccine or allow unvaccinated employees to be tested weekly
- Develop a plan for handling accommodation requests
- Have a plan for tracking test results
- Prepare for OSHA complaints and inspections
Employers should also review the DOL’s Compliance Dates Handout provided here, and review the links provided in the previous section above, including the above link to the Fisher Phillips Comprehensive breakdown and FAQs.