The Saga Continues with the So-Called Federal Employer Vaccine Mandate

December 30, 2021

After months of controversy and legal challenges in Court, many employers have to be asking:  where are we on the so-called Federal OSHA vaccine mandate?  The shorter answer is that we are still in limbo, but hopefully with a final answer coming shortly.  While we wait, employers should begin taking steps to comply with OSHA’s vaccine and testing rules or else risk enforcement.  Here is a more detailed look at the latest developments:

Employers may recall that back in November, the Occupational Health and Safety Administration (OSHA), the Federal agency responsible for worker safety, issued a nationwide “Emergency Temporary Standard” regarding COVID vaccines and testing.  Briefly, that ETS required employees of large private employers (employers with more than 100 employees) to be vaccinated for COVID or in the alternative submit to regular COVID testing.

As with most things related to COVID, OSHA’s vaccine and testing requirements were met with controversy and resistance.  While in reality the ETS is NOT a vaccine mandate (it explicitly allows employees to COVID test and mask in lieu of vaccination), employers, labor unions and several states challenged the rule for what they perceived as another example of government overreach during the pandemic.

In November, the Fifth Circuit issued a nationwide stay on OSHA’s vaccine and testing ETS.  Based on that order, the requirements of the ETS were on hold with no immediate risk of enforcement.  That is until just recently when the Sixth Circuit lifted the stay on December 17.  In a 2-1 decision, the three-judge panel decided that OSHA’s authority to ensure workplace safety was not limited to “hard hats and safety goggles” and allowed the agency to regulate viruses and infectious diseases, like COVID.  In reaching the decision, the panel noted that OSHA has in the past for example, implemented bloodborne pathogen regulation, enforcing the Needlestick Safety and Prevention Act.

Shortly afterwards, OSHA announced that it was ready to enforce the ETS, but would permit some leeway on enforcement deadlines to allow employers time to come into compliance.  Initially covered employers had until December 5, 2021 to meet the vaccination requirements (i.e., have vaccination policies in place, know and track vaccination status, and give paid time off), and January 4, 2022, to begin testing.  OSHA now says that it will not issue citations for noncompliance for the vaccine requirements before January 10, 2022 and for the testing requirements before February 9, 2022, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

Meanwhile multiple states and private parties have filed emergency motions with the U.S. Supreme Court to block the ETS.  In a rare move, the Supreme Court agreed to expedited hearings on the issue of OSHA’s vaccine rule as well as other federal vaccine mandates including concerning health care workers.  Arguments are scheduled to take place on January 7, 2022.

It is uncertain whether or not the Supreme Court will uphold the ETS.  The Supreme Court historically has been inclined to uphold vaccine mandates.  Indeed, it has allowed many state vaccine mandates to stand, including those concerning COVID during this pandemic.  But it remains to be seen how Supreme Court will view Federal vaccine requirements.  As discussed in a previous VAC article, the main issue will likely be whether OSHA’s “general duty” requirement preempts state and local law under the Federal Supremacy Clause, and also whether a vaccine mandate or the other requirements of the ETS are themselves an overreach of OSHA’s general authority.

In the meantime, while we wait for yet another fight to play out in the courts, covered employers should understand the ETS and begin to take steps to comply.  As explicitly noted by OSHA, such evidence of an employer’s “good faith efforts” to comply with the agency’s COVID vaccine and testing rules may well determine whether or not an employer receives a citation.  This means that before January 10 employers should at a minimum begin to draft written policies regarding vaccine and testing requirements.  This will require them to decide whether to adopt a mandatory COVID vaccination policy or a policy requiring employees to either be vaccinated or tested weekly and wear face coverings at work.  They should also develop a plan for tracking employee vaccine status by January 10 and have a plan ready to begin testing protocols if any by February 9.

With this in mind, here is a summary of the key features of the full ETS published in the Federal register:

  • Which Employers Must Comply? All private employers under OSHA’s authority and jurisdiction who employ a total of 100 or more individuals at any time when the ETS is in effect must comply.  The 100-employee threshold applies firm or corporate-wide.  This means that private employers with multiple locations must count all of their employees together to determine if they satisfy the 100-employee threshold.  Separate, but related corporate entities which centralize “safety matters” must also count all employees together.  Franchisee locations with separate ownership would count their employees separately from the franchisor, and staffing agencies, as opposed to the host site are considered the employer for purposes of counting employees.  It is estimated that two-thirds of all private-sector workers will be covered by the ETS.
  • Which Employees are Excluded? The ETS does not apply to employees who work remotely, exclusively outdoors, or alone, i.e., they report to a workplace where no co-workers or customers are present.  These employees must be counted toward the 100-employee threshold, but they do not have to comply with the vaccination/testing requirements.
  • What are the Requirements? The ETS has 7 main components:  1) Written Policy with Mandatory COVID Vaccination or Choice of Vaccine or Test and Mask Alternative 2) Testing and Masking of the Unvaccinated, 3) Monitoring and Removal of COVID Positive Employees; 4) Paid time off for vaccinations, 5) Record keeping of vaccination and testing results, 6) Notice to employees about COVID and employee rights; and 7) Reporting.
    • Written Policy with Mandatory COVID Vaccination or Test and Mask Alternative. Covered employers must prepare and enforce a policy that either mandates employees get the COVID-19 vaccines or requires employees to choose to either be vaccinated or undergo weekly COVID-19 testing and wear a face covering at work.
    • Testing and Masking. Employees who are not fully vaccinated must be tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).  The ETS does not require employers to pay for any costs associated with testing, but they may volunteer to do so. Employer payment for testing may, however, be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. As far as masks go, employers must ensure that every employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances. Employers also are not allowed to prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (e.g., interfering with the safe operation of equipment).
    • Monitor and Remove COVID + Employees. Employers must require that their employees promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.  The ETS also requires that employers immediately remove any employee from the workplace, regardless of vaccination status, who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep those employees out of the workplace until they meet criteria for returning to work.  This is consistent with CDC guidance which does not require vaccinated individuals exposed to COVID to quarantine unless they have symptoms or test positive.
    • Paid Time Off. Employers must provide employees reasonable time, including up to four (4) hours of paid time, to receive each vaccination dose and/or to recover from the side effects experienced following each dose of the COVID vaccine.
    • Record Keeping. Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, including a roster of employee vaccination status.
    • Notice. Employers must provide employees in a language and at a literacy level they understand: (1) information about the requirements of the ETS and workplace policies established as a result thereof; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation regarding COVID status.
    • Reporting. Covered employers are required to report to OSHA COVID-19 fatalities and hospitalizations.   Fatalities must be reported within 8 hours, and work-related COVID-19 in-patient hospitalizations within 24 hours, of the employer learning of the event.
  • What are the Penalties for Non-Compliance? Noncompliant employers can face fines up to $14,000 per unvaccinated worker, implemented and enforced by OSHA.

OSHA is also offering compliance assistance to help businesses implement the standard, including a webinarfrequently asked questions and other compliance materials.  Employers may also wish to contact legal counsel to assist with developing OSHA-compliant COVID vaccination and testing plans in case the Supreme Court upholds the ETS.