As we have described previously in recent months, several precarious federal mandates have been issued by the administration of President Biden as the country works its way toward recovery from the COVID-19 pandemic. On November 5, 2021, OSHA issued an Emergency Temporary Standard (ETS), requiring that all employers with 100 or more employees either mandate COVID-19 vaccination for all employees or allow employees to elect weekly COVID-19 testing. In the most recent court challenge, this mandate, originally stayed by the Fifth Circuit Court of Appeals, has been reinstated by the Sixth Circuit Court of Appeals. Inevitably, the next stop will be the United States Supreme Court, as this contentious vaccine requirement continues to be challenged.
Readers may recall that the same day the OSHA ETS mandate was issued, it was enjoined nationwide by the Fifth Circuit. Specifically, that court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” There were several immediate challenges to the ETS in other federal district and appellate courts as well. All litigation challenges to the OSHA mandate were consolidated for consideration by the Sixth Circuit Court of Appeals. While that case was pending, OSHA suspended all enforcement activity for the ETS.
However, on December 17, 2021, the Sixth Circuit lifted the stay imposed by the Fifth Circuit. A three-judge panel issued a 2-1 decision to lift the stay, indicating that OSHA “must be able to respond to dangers as they evolve.”
In a dissenting opinion, Trump appointee Judge Joan L. Larsen asserted that OSHA failed to establish any “grave danger” in the workplace warranting the ETS. According to the dissent, “Vaccines are freely available, and unvaccinated people may choose to protect themselves at any time. And because the [Secretary of Labor] likely lacks congressional authority to force them to protect themselves, the remaining stay factors cannot tip the balance.”
Several state attorneys general opposing the ETS immediately filed an emergency appeal with the U.S. Supreme Court, again seeking to stay the OSHA mandate. As the jurist assigned to the Sixth Circuit for such emergency appeals, Justice Brett Kavanaugh may distribute the application to the full Supreme Court for consideration or may decide the stay application on his own.
To give employers time to comply, OSHA has delayed implementation of the ETS requirements. Standards that would have taken effect on December 6, 2021, such as implementing vaccination verification rules and indoor masking requirements for unvaccinated employees, will begin on January 10, 2022. Weekly COVID-19 testing policies for unvaccinated workers must be implemented by February 9, 2022. OSHA will not issue citations for noncompliance with testing requirements before February 9, 2022, assuming employers are exercising reasonable, good faith efforts to come into compliance.
OSHA ETS Mandate Requirements
As previously discussed, the OSHA ETS establishes vaccination and testing requirements for private employers with at least 100 employees. Covered employers must ensure that their employees are either fully vaccinated against COVID-19 or are tested on a weekly basis.
Employers must obtain and collect proof of each employee’s vaccination status. Unvaccinated workers are required to wear facial coverings while at work. Employees who are not fully vaccinated must also be tested weekly for COVID-19 and present evidence of a negative test to their employer. The ETS does not require employers to pay for COVID-19 testing. Unless otherwise dictated by other laws, regulations, or a collective bargaining agreement, employers may require that employees bear the expense of any weekly testing.
The ETS specifically notes that employees with medical issues, disabilities, or sincerely held religious beliefs prohibiting vaccination may request accommodation.
The ETS also requires employers to provide paid time off to allow employees to receive the vaccine and recover from any side effects.
Moving Forward with the ETS Mandate
The Supreme Court will decide the ultimate fate of the ETS in the coming weeks. In the meantime, employers should develop a plan to comply with the first phase of ETS requirements by January 10. Further, affected employers may wish to start gathering vaccination information from employees, if they have not done so already. Employers must be ready to comply with the ETS testing requirements by February 9, in the event the U.S. Supreme Court rejects the pending emergency appeal.
The Labor and Employment lawyers at Coolidge Wall will post additional analysis and information updates. Should you have specific questions, please contact us.