By Robert J. Kent, Esq.
As most private employers are aware, on November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued a 490‐page Emergency Temporary Standard (ETS) regarding the COVID‐19 vaccine requirements as related to private employers. OSHA's stated justification for such ETS was that “COVID‐19 has killed over 725,000 people in the U.S. in less than two years, and infected millions more.” Accordingly, OSHA determined that COVID‐19 created “grave danger” for workers in the workplace, particularly for those workers partially vaccinated or unvaccinated. The ETS is intended, according to OSHA, to protect all employees of “covered” employers, particularly the unvaccinated and the partially vaccinated.
However, as expected, OSHA's ETS is being challenged by numerous diverse groups and individuals in federal courts around the country. On November 6, 2021, the U.S. Fifth Circuit Court of Appeals issued a Temporary Stay as to OSHA's ETS, until such time as briefs could be submitted by the parties and judicial review could take place. Briefs were subsequently submitted by the Petitioners and Respondents on November 8 and 9, respectively.
On November 12, 2021, the U.S. Fifth Circuit issued a more detailed decision determining that OSHA's ETS remain stayed pending adequate judicial review of the petitioners' underlying motions for a permanent injunction. In that opinion, the Court set forth numerous reasons that it believes the Mandate is unlawful, unjustified, and unconstitutional. Accordingly, the U.S. Fifth Circuit ordered “that OSHA take no steps to implement or enforce the Mandate until further court order.”
Shortly after the November 12 decision was issued by the Fifth Circuit Court of Appeals, OSHA issued the following announcement:
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID‐19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
So where does this leave employers with 100 or more employees? It leaves all such employers in a position of uncertainty as to when, and if, it will have to comply. Technically, such employers will not have to comply with the ETS Mandate until such time as either the U.S. Fifth Circuit lifts the Stay or considers and decides the request for a permanent injunction denying such request, or the U.S. Supreme Court considers and overturns the Stay or any such permanent injunction that might be issued. But when might that happen? It could happen fairly rapidly, or could be quite a while, depending upon how quickly the U.S. Fifth Circuit considers the request for the permanent injunction or how quickly the matter gets to the U.S. Supreme Court and is decided.
This brings one to the question of whether employers with 100 or more employees should sit idly by waiting for a decision while doing nothing. Probably not, since if and when a decision is issued by the U.S. Fifth Circuit Court of Appeals or by the U.S. Supreme Court lifting the Stay or lifting any permanent injunction that might be issued, OSHA's ETS will go into effect and become enforceable starting that day. Accordingly, such employers would be best served by planning how they will implement the other requirements of the ETS if the Stay or any permanent injunction that might be issued is lifted, since the requirements of the mandatory policy and the other requirements of the ETS are many.
To help the reader become familiar with some of the requirements, below are some highlights of OSHA's ETS in a question‐and‐answer format.
What employers are subject to the requirements of the ETS?
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The ETS applies to all private employers with a total of 100 or more employees.
Are there any exemptions from the applicability of the ETS standards?
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Yes. The ETS is not applicable to workplaces covered by the Safer Federal Workforce Task Force COVID‐19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, or to workplaces covered by OSHA's Healthcare ETS to protect healthcare workers.
How are employees counted in determining whether employer has 100 or more?
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Employer must include all employees across their U.S. locations.
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Part‐time employees do count toward the total.
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Independent contractors do not count toward the total.
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In a traditional franchisor‐franchisee relationship, if franchise is independently owned and operated, the franchisee's employees would not count toward the franchisor's count; but if franchise is owned by the franchisor corporation, then the employees of that franchise would be included in the franchisor's count.
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Where a staffing agency places employees at a host employer location, only the staffing agency would include those employees it has placed in its count.
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At a multi‐employer construction site, each company represented would only count its own employees. The general contractor only counts its actual employees, while sub‐contractors only count their own employees.
What if employer does not have 100 employees on the effective date of the ETS, but does have 100 employees or more at different times during the pending ETS?
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Once an employer meets the threshold of 100 employees, no matter when it is during the pendency of the ETS, the ETS applies to that employer from that point forward until the ETS is no longer in effect, regardless of fluctuations of the employee count below the threshold of 100.
What does the ETS require of covered employers?
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Covered employers must implement a mandatory written vaccine policy applicable to their employees, unless they adopt a written policy in which employees may either be fully vaccinated (which is OSHA's stated preferred option) or be regularly tested for COVID‐19 (once every seven days) and wear a face covering in the workplace.
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Determine the vaccination status of each employee, require each vaccinated employee to provide acceptable proof of their vaccination status, and maintain records of employee vaccination status and testing until the ETS is no longer in effect.
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Covered employers must support vaccination by providing employees with reasonable time, including up to four hours of paid time to receive each primary vaccination series dose, and reasonable time and paid sick leave to recover from any vaccination side effects.
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Covered employers must ensure that those employees who are not fully vaccinated are tested for COVID‐19 every seven days and wear face coverings.
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Covered employers must ensure that those employees who are not fully vaccinated provide employer with documentation of the most recent test result no later than the seventh day following the date the employee last provided a test result.
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Covered employers must immediately remove any employee who tests positive for COVID‐19 from the workplace, until it is safe for the employee to return.
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Covered employers must report to OSHA within eight hours of learning of a COVID‐related death of an employee and must report to OSHA within 24 hours of a COVID‐related hospitalization.
Is the covered employer required to pay for testing and/or face coverings for employees who choose to not be vaccinated?
Are there any exemptions from the mandatory vaccination policy that may be applicable to employees?
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Yes. An employee may be exempt if the vaccine is medically contraindicated, if the employee is legally entitled to a reasonable accommodation for a disability under federal civil rights laws, such as the Americans with Disabilities Act, or if the employee has a sincerely held religious belief, practice or observance that conflicts with vaccine requirements.
As stated previously, the effective date of OSHA's ETS was originally November 5, 2021, the day that it was published. However, within the ETS was language stating that “OSHA does not require compliance with any provision of the ETS within the first 30 days after it becomes effective.” How is that affected by the Stay? The answer to that is unknown. OSHA may interpret that in a way as to merely count the first 30 days from November 5 regardless of the Stay, and thus be ready to enforce the ETS the day that the Stay is lifted, if it is lifted. While a court may say differently, and rule that the 30‐day period only begins to run from the date that the Stay is lifted, such a ruling cannot be predicted with certainty. This is reason for such employers to prepare for the potential day that the ETS once again becomes effective, by drafting the required policy and planning how they will implement the other requirements of the ETS, since the requirements of the mandatory policy and the other requirements of the ETS are many.
For more information:
The above addresses but some of the highlights of the ETS. There is much more required of employers in the 490‐page document. If you have questions or would like additional information, contact a member of the Bowles Rice Labor & Employment team. We would be happy to help you craft a compliant policy and/or guide you through your particular legal issues relating to any of the above.
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