CLIENT ALERT *UPDATE*: OSHA Covid-19 Vaccine and Testing Mandate
UPDATE – OSHA SUSPENDS ACTIVITIES RELATED TO THE NEW EMERGENCY TEMPORARY STANDARD FOR EMPLOYERS: COVID-19 VACCINE AND TESTING MANDATE
UPDATED November 17, 2021:
As mentioned in our recent Client Alert “OSHA’s Emergency Temporary Standard (ETS) for Employers: Covid-19 Vaccine and Testing Mandate,” there have been multiple legal challenges initiated to OSHA’s ETS. Last week, the United States Court of Appeals for the Fifth Circuit reaffirmed its order blocking enforcement of the ETS.
On November 16, 2021, a multidistrict litigation panel selected (by lottery) the United States Court of Appeals for the Sixth Circuit Court to hear and consolidate the legal challenges to OSHA’s ETS. A three-judge panel of the Sixth Circuit will be randomly assigned to preside over the matter. The Sixth Circuit is based in Cincinnati, Ohio, and a majority of the judges currently presiding on that court were appointed by Republican presidents.
Significantly, OSHA has now “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
We will continue to monitor these developments.
ORIGINAL RELEASE BELOW:
OSHA’S NEW EMERGENCY TEMPORARY STANDARD (ETS) FOR EMPLOYERS: COVID-19 VACCINE AND TESTING MANDATE
On Thursday, November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated emergency temporary standard (ETS) requiring large employers to mandate COVID-19 vaccinations and testing of their employees. Private employers with 100 or more employees must implement a written mandatory COVID-19 vaccination-or-testing policy. Their employees must be vaccinated against COVID-19 or wear face masks (beginning December 5, 2021) and submit to weekly testing for COVID-19 (beginning January 4, 2021). Employers can allow unvaccinated employees to work remotely instead of testing.
Legal challenges to this mandate have already been initiated in several states, including Florida. One court (the Fifth Circuit Court of Appeals) issued a temporary injunction, blocking enforcement of the ETS. We expect to see more rulings from the other federal appeals courts; some may follow the Fifth Circuit (and block enforcement) while others may rule the ETS is constitutional and enforceable. Ultimately, there will be a unifying final judicial order, whether by the U.S. Supreme Court or a multidistrict litigation panel. Until then, we recommend employers familiarize themselves with the ETS and its requirements and prepare for compliance should the stay be lifted and the ETS revived. To assist in that regard, the following is a brief summary of the key elements of the ETS:
Covered Employers: The rule applies to all private businesses with 100 or more total employees at any time the ETS is in effect (i.e., from November 5, 2021 until the ETS expires). The headcount includes all full-time, part-time, temporary and remote employees of the business, regardless of location. Leased employees (where the client employer is not the employer of record) or independent contractors are not included.
Covered Employees: The vaccine, testing and mask mandate does not apply to employees who work remotely or who work exclusively outdoors, although an employer can choose to enforce these requirements on such employees.
Written Policy: Covered employers must create and disseminate a written policy that requires covered employees to either (i) be fully vaccinated or (ii) wear masks and submit to weekly testing. Employers must also provide employees with information about the benefits of being vaccinated, through the CDC document, “Key Things to Know about COVID-19 vaccines,” which can be found at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html. A procedure for employees to report positive COVID-19 tests or positive COVID-19 diagnosis must be established, and such employees must be immediately removed from work until the CDC’s return to work criteria are met.
Acceptable Tests: Self-administered or at-home tests are not permitted. The ETS does not address who is responsible for paying for the tests, which means employers can elect to pay for the tests or require the unvaccinated employee to do so.
Paid Time Off: Covered employers must give employees up to four (4) hours paid time off (PTO) to receive the vaccine during work hours and reasonable PTO to recover from the side effects of the vaccine. Employees can be required to use paid sick leave benefits already provided by the employer. PTO is not required for booster shots.
Recordkeeping Requirements: Covered employers must create and maintain a roster of their employees’ vaccination status, which must be treated as a confidential medical record. Employers cannot rely on an employee’s attestation that they have been vaccinated. Employees must provide a copy of the COVID-19 vaccination record card or immunization records with the type of vaccine administered, dates of vaccination, and the name of the health care professional or clinic that administered the vaccine.
Penalties for Noncompliance: The penalties for noncompliance are severe and include OSHA citations and penalties of up to $13,653 per violation, and additional citations and penalties by OSHA for willful or egregious failures to comply.
Additional resources
Full text of the ETS: click here.
ETS Summary: click here.
FAQ’s: click here.
Department of Labor/OSHA website: click here.
As has been the case since the beginning of the COVID-19 pandemic, this is an evolving situation and businesses must remain flexible and prepared to adjust their responses as needed. ABL will continue to monitor the latest developments and serve as a resource as needed. Please contact Karen Ibach Bowden [kbowden@abelbeanlaw.com] if you have any questions or would like additional information.