COVID-19 UPDATE: This Friday the U.S. Supreme Court Will Hear Challenges to OSHA Vaccination Mandate for Large Employers
If you are a large employer covered by the OSHA Emergency Temporary Standard (ETS) requiring you to follow either a mandatory vaccination policy or a masking and weekly testing policy, you may feel like you have whiplash right now. Over the past 2 months, this on again off again standard, combined with worker vaccine hesitancy and lack of adequate testing supplies, has caused many employers who do not want to implement a mandatory vaccination policy to throw up their hands and wonder what, if anything, they should be doing. But don’t throw in the towel yet. Below we’ve provided a brief recap of how we got to this point, and some practical actions you should consider taking now, in case it becomes necessary to comply with the ETS next week.
The ETS Timeline:
November 5, 2021 OSHA publishes an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to either adopt mandatory vaccination policies, or implement masking and weekly testing for unvaccinated employees.
November 6, 2021 The U.S. Court of Appeals for the Fifth Circuit issues a temporary stay to pause OSHA’s implementation of the ETS on a nationwide basis, and reaffirms that stay on November 12.
November 16, 2021 Because several cases challenging the ETS were filed in other circuits, the U.S. Judicial Panel on Multidistrict Litigation convenes to consolidates all these cases into a single matter, and selects the U.S. Court of Appeals for the Sixth Circuit (sitting in Cincinnati, Ohio) to hear the cases.
December 17, 2021 A three-judge panel from the Sixth Circuit issues its decision lifting the stay. OSHA immediately issues a notice (more on this below) that it will delay enforcement of Phase 1 of the ETS until January 10, 2022 and of Phase 2 until February 9, 2022.
December 22, 2021 U.S. Supreme Court agrees to fast-track oral arguments on the ETS for January 7, 2022, however the Supreme Court declines to issue a stay of the ETS pending the outcome of these proceedings.
OSHA’s Grace Period:
OSHA continues to vigorously defend its right to implement the ETS. Immediately after the Sixth Circuit panel lifted the stay, OSHA published a statement on its coronavirus webpage indicating that “to account for uncertainty cause by the stay” OSHA would not issue citations for noncompliance with any requirements of the ETS before January 10 or citations for noncompliance with the standard’s testing requirements before February 9, however this grace period will only apply “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
What Is Required Under the ETS:
As noted above, the Supreme Court refused to issue a stay while it considers the merits of the ETS. The oral arguments will not be heard until Friday, January 7, and OSHA intends to begin to the ETS starting Monday January 10. This means that unless the Supreme Court issues an opinion before Monday morning, and that opinion invalidates the ETS, then OSHA will begin to enforce Phase 1 of the ETS next week.
Here is what the first phase requires:
- Adopt a policy that you either require vaccination, or will allow unvaccinated employees to wear approved face coverings and undergo weekly COVID-19 testing;
- Provide employees with a copy of The CDC “Key Things to Know About COVID-19 Vaccines”;
- Provide employees with a copy of the OSHA Fact Sheet “Workers’ Rights under the COVID-19 Vaccination and Testing ETS”;
- Provide employees with the OSHA Fact Sheet “Information for Employees on Penalties for False Statements and Records”;
- Solicit and maintain documentation of your employees’ current vaccination status;
- Require unvaccinated employees to wear face coverings while in indoor common work areas, except when eating or drinking; and
- Report each employee COVID-19 fatality to OSHA within 8 hours of learning about the fatality, and report each employee COVID-19 in-patient hospitalization to OSHA within 24 hours of learning about the in-patient hospitalization.
For more details about what is required under the ETS see our earlier post from November 18, 2021: Update on status of OSHA Emergency Temporary Standard for Employers with 100 or More Employees.
Enforcement of the second phase, which requires that employers either begin to enforce their vaccination mandate or begin weekly testing of unvaccinated employees has been paused until February 9, however OSHA has reserved the right to take enforcement actions for noncompliance with Phase 2 of the ETS prior to February 9 for those covered employers who have not been exercising reasonable good faith efforts to come into compliance with the ETS.
As a reminder, the penalties for noncompliance with the ETS can be significant, ranging from $14,000 to over $100,000 per violation. So investing in some reasonable advance preparation is worth the effort, even if the ETS is not ultimately upheld.
Steps Employers Can Take Now:
With this in mind, here are some practical steps you can take now:
- Prepare a notice to your employees advising them of the potential need to comply with the OSHA ETS starting on Jan 10.
- Include the following information in your notice:
- You are NOT going to impose a mandatory vaccination policy;
- If the court does not delay implementation of the OSHA ETS, then during the week of Jan. 10, you will be asking employees to provide you with information on their vaccination status; and
- Employees who are not vaccinated, or have not yet provided their vaccination status, will need to begin to wear face coverings at work starting on Monday, January 10.
- Provide the three required federal notices with your employee communication:
- “Key Things to Know About COVID-19 Vaccines”
- “Workers’ Rights under the COVID-19 Vaccination and Testing ETS”
- “Information for Employees on Penalties for False Statements and Records”
- Have vaccination attestation forms on hand and ready to distribute to employees on Monday, January 10, to request their vaccination status. For a sample form, click here. Be sure to maintain completed forms in a confidential and secure location, separate from your employee personnel files.
If you have any questions, or need compliance assistance, please consult with your labor and employment counsel. As new developments occur, we will monitor and update this information.
Julie K. Hopkins is an experienced labor and employment advisor and problem solver. She works with diverse clients across a variety of industries to consistently provide the strategic guidance and support that enables organizations to more effectively and efficiently advance their goals while ensuring that their responsibilities to key internal and external stakeholders are met. She can be contacted at jkhopkins@strausstroy.com or 513-629-9459.
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