OSHA’s Vaccine ETS Encounters More Obstacles – Next Steps for Employers with 100+ Employees

The OSHA Emergency Temporary Standard (ETS) issued on November 4, 2021 has been met with controversy from the outset. It is intended to require employers with 100+ employees to ensure that those employees are either fully vaccinated or produce a weekly negative COVID-19 test beginning January 4, 2022. Other requirements in the ETS are effective December 5, 2021. Several groups opposing the rule filed actions in various federal courts in an effort to block the rule. The conservative Fifth Circuit Court of Appeals was the first to act by issuing on November 6th a temporary “stay” that blocked the ETS until it could more closely examine the legality of the rule.

Employers who have been trying to understand and comply with the ETS are wondering what’s next and what they should do now. The following explains what happened after November 6th and addresses issues that employers can consider as they decide next steps.

What Happened on November 12th?

Late Friday, November 12, the Court extended that stay in a 22-page ruling. Focusing upon the premise that the agency has, among other things, exceeded its authority and failed to follow its own rules, the Fifth Circuit ordered OSHA to take no steps to implement or enforce what it referred to as “the Mandate” pending adequate judicial review of underlying motions to permanently enjoin the ETS. 

What Happened on November 16?

Because pleadings on the ETS were filed in several federal courts throughout the nation, appeals are pending in the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 11th and the District of Columbia Courts of Appeals. To address this issue, the Judicial Panel on Multidistrict Litigation on November 16 conducted a lottery to select which federal circuit will hear the consolidated litigation. Each court involved had only one entry, regardless of the number of petitions pending in a particular circuit. 

The case will go to a panel of three judges from the U.S. Court of Appeals for the Sixth Circuit because this circuit was pulled from the lottery drum. The Sixth Circuit covers Kentucky, Michigan, Ohio and Tennessee. The majority of judges in that circuit were appointed by Republican presidents. 

While the Sixth Circuit won the random draw, the lottery doesn’t necessarily end the jockeying over which court will ultimately hear the case. Parties can petition circuit courts to transfer the case elsewhere. Regardless, the U.S. Supreme Court is likely to have the final say on the OSHA ETS. 

What’s Next?

Under the ETS, covered employers have had, and could still have, only until December 6, 2021 to develop compliant policies consistent with the ETS. Depending on what happens at the Sixth Circuit or the Supreme Court (both of which could act quickly to either breathe new life into the ETS or strike it down for good), employers may only have a short window of time to implement the rule. Therefore, employers should take this interim limbo period of time to assess risk tolerance levels and prepare accordingly. 

Here are some steps to consider:

Confirm Which Rules Apply to You and Assess Your State of Compliance Readiness

Before doing anything else, you should confirm whether you are subject to the federal OSHA ETS or possibly another set of federal vaccination rules. Keep in mind that 22 states have “state plans,” where a state agency enforces its safety regulations. Apart from the federal ETS, you could be subject to the Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, the OSHA COVID Healthcare ETS (which is set to expire in December), or the CMS Omnibus Staff Vaccination Rule, which requires vaccination (with no testing option) of individuals working at or for healthcare providers who participate in the Medicare or Medicaid programs and are regulated by CMS. Generally, these more specific rules supersede the requirements of the broader OSHA ETS. The stay of the ETS did not halt enforcement of any of these other rules. You must also consider to what extent state statutes or executive orders may affect your options.

If you are covered by the ETS, you have probably already started considering how you would fulfill its requirements. Besides the core ETS provision that requires either vaccinations or weekly testing (and masking), you may have implemented or have begun implementing other provisions that the ETS would require. Those provisions include:

  • establishing, implementing, and enforcing a written policy on vaccines, testing, and face coverings;
  • providing certain information to employees on vaccines and the requirements of the ETS;
  • preparing to provide paid time off to employees to obtain the vaccine and reasonable time and paid sick leave to recover from side effects following each dose;
  • obtaining and maintaining records and a roster of employee vaccination status; and
  • complying with certain notice requirements when there is a positive COVID-19 case and reporting to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.

If you have not already evaluated and started acting on these items, you should evaluate where you stand. The ETS could clear its legal challenges and become enforceable – either as scheduled or under only a slightly revised timeline. Although it seems increasingly likely that the pending challenges could result in an adjustment of the published deadlines for compliance, an adjustment is not guaranteed.

At a minimum, you should consider now whether your company would require employees to be vaccinated or whether you would offer the option of weekly testing, accompanied by masking. Even absent the requirements of the ETS, it is prudent for you to determine now who is and is not vaccinated, as vaccination status affects recommended quarantine guidelines and can help better position you to manage a positive case in the workplace.

If you are considering the testing option, carefully evaluate the logistics of a testing program. Implementing such a program would not be a simple or small task. You should also ensure that your accommodation policies and procedures are up to date, as they are likely to become increasingly important regardless of the fate of the ETS.


Assess Your Level of Risk Tolerance

Whether and how you proceed is largely a matter of risk tolerance. Although other OSHA temporary standards have been struck down in the past, this is an unprecedented and unpredictable situation, and no one really knows how things will shake out in the coming weeks and months.

Some employers may choose to sit tight until the courts provide clarification. In view of the detailed requirements, however, failure to begin preparing could be a risky proposition. Also, if the ETS is upheld and cleared for enforcement, and the current compliance deadlines in December and January do not change, you would have little time to act. Even if the deadlines were extended, you may not be given much more time to comply. Thus, we recommend moving forward in order to be in position to meet deadlines. That means continuing to prepare and deciding policy and procedural options that would be needed. At minimum, this could include gathering vaccination status and determining whether or not to offer the weekly testing option in your policy and, if so, how you would implement and track employee testing. 

This summary is not intended to be exhaustive nor should any discussion or opinions be construed as professional advice. Some but not all content provided by our preferred partner for employment law Fisher Phillips. Published by permission of Fisher Phillips.

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