Quick Summary: On December 17, 2021, the Sixth Circuit--by a close call--dissolved the stay of OSHA's Mandatory COVID-19 Vaccination and Testing Emergency Temporary Standard ("ETS"). Meaning, larger employers (those with 100 or more employees), will need to implement a mandatory vaccination policy or require weekly COVID testing of its employees. Deadline to comply is January 10, 2022 for the mandatory vaccination policy, and February 9 for the testing requirement.
OSHA's ETS at a Glance
Which employers are covered by the ETS?
The ETS covers all employers with 100 or more employees firm- or corporate-wide.
Employers who have fewer than 100 employees in total are not covered.
What does the ETS require employers to do?
Mandatory Vaccination Policy: Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception to allow employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
Weekly Testing as an Alternative: Ensure that each employee who is not fully vaccinated is 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). Face covering is required for unvaccinated employees.
Maintain Vaccination Records: Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
Provide Paid Time for Vaccination: Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time for employees to recover from any side effects experienced following each vaccination dose.
Develop Comprehensive COVID Policy, covering the following topics:
Policy must require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
Design procedures to immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return to work criteria are met.
Ensure that each 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.
Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated, protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
When does the ETS take place?
The ETS was originally designed to take effect in early December 2021. However, with the latest ruling from the Sixth Circuit, OSHA has announced on December 18, 2021, that it will begin to enforce the ETS, including the vaccination mandate after January 10 and the testing mandate after February 9, 2022.
What are the next steps?
Supreme Court Challenges Underway
The Sixth Circuit's ruling (accessible here) was decided by a three-judge panel in a 2-1 vote. The Sixth Circuit's Chief Judge Jeffrey S. Sutton, who did not particulate in the panel, had previously filed an opinion noting that the ETS stay should be maintained. Chief Judge Sutton, who is well respected by multiple U.S. Supreme Court Justices, will likely carry weight in the upcoming Supreme Court challenges. Multiple challenges have already been filed since the ruling.
Step-by-Step Guide to Comply with the ETS for Now
While the challenges are underway, the temporary stay to enforce the ETS has been lifted, meaning OSHA's order will be enforced in early 2022. With that in mind, employers should begin the following steps:
Prepare a COVID Vaccination/Testing Policy
Establish, implement, and enforce a written mandatory vaccination policy; or
Establish, implement, and enforce a written policy allowing employees to choose to be fully vaccinated against or provide proof of regular testing for COVID-19.
The requirements do not apply to employees who work from home, do not report to a worksite with other individuals, or work exclusively outdoors.
Unvaccinated employees must undergo at least weekly testing. Employees who fail to provide timely test documentation must be sent home.
Employers must retain and treat test records as confidential medical records.
Recordkeeping
Employer must determine the vaccination status of each employee and whether the employee is fully vaccinated.
Employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.
The employer must maintain a roster of each employee’s vaccination status and testing history.
Provide Reasonable Time for Vaccination
Provide reasonable time for each vaccination shot (paid working time, not paid leave).
Must permit employees to use reasonable available paid sick leave for vaccination (generally up to two days is reasonable).
Not retroactive.
Develop Complete COVID Guidelines, covering the following topics:
Face covering for employees not vaccinated;
Social distancing for employees not vaccinated;
What to do when someone is tested positive for COVID;
How to return to work after COVID recovery;
Provide COVID and vaccination information.
As always, if you have any questions or would like assistance with the compliance issues discussed in this article, please contact our Managing Counsel, Richard Liu, at Richard.liu@consultils.com.
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Richard Liu, Esq. is the Managing Counsel of ILS. He serves clients as a management-side defense lawyer specializing in employment and business litigation. Richard is also an expert on litigation prevention and compliance. He regularly advises Fortune 500 companies and startups on employment, labor, and commercial matters.
Email: richard.liu@consultils.com | Phone: 626-344-8949
*Disclaimer: This article does not constitute legal opinion and does not create any attorney-client relationship.