By Holly English, Esq., Rachel M. Manne, Esq and Rachel Khedouri, Esq.
[UPDATE: After the below eAlert went to press, the Judicial Panel on Multidistrict Litigation selected the Sixth Circuit Court of Appeals to preside over the consolidated challenges to the OSHA ETS.]
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 (ETS). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” Although the order does not expressly provide whether it applies nationwide or only in the jurisdictions of the Fifth Circuit, the motion was not restricted to a particular jurisdiction and the order directs OSHA to “take no steps to implement or enforce” the ETS without limitation. In response, OSHA has announced that it has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation”.
In light of the fact that the ETS is being challenged by state and private entities in 11 of the 12 circuit courts, the cases will be consolidated before a single Circuit Court. The Judicial Panel on Multidistrict Litigation is expected to select the court to hear the consolidated cases by lottery potentially today (November 16, 2021).
While the outcome of the consolidated cases is unknown – and there is also a high probability that this issue will ultimately be decided by the Supreme Court – employers should consider continuing to prepare for the ETS (as set forth below) as if it will go into effect. We will continue to monitor the legal developments impacting the implementation of the ETS and keep you informed.
The Occupational Safety and Health Administration (OSHA) has issued its long-awaited rule requiring vaccinations for companies with 100 or more employees. OSHA has issued a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) (see Federal Register rule HERE, OSHA’s summary HERE, and OSHA’s FAQs HERE) which requires employers with 100 or more employees to do the following:
- Employees must be fully vaccinated by January 4, 2022. Alternatively, a company can elect to adopt a policy that permits employees to choose to be fully vaccinated or get weekly verified COVID-19 tests. Testing would not be required until after January 4, 2022, once employers know which employees are not fully vaccinated.
- All other provisions in the Act, including requirements such as masking and recordkeeping, must be complied with of 30 days after publication of the Rule in the Federal Register (which is November 5, 2021), thus the date for compliance is December 5, 2021.
- For purposes of this ETS and to determine whether an employer has 100 employees, all full-time and part-time employees count, even if they are working fully remotely, but independent contractors do not.
- Employers must develop a written mandatory vaccination policy. The policy will apply to all employees apart from those (a) for whom a vaccine is medically contraindicated, (b) those for whom medical necessity requires a delay in vaccination, or (c) those entitled to a reasonable accommodation because they have a disability or sincerely held religious belief that conflicts with the vaccination requirement. For (a) and (b), weekly testing may be an appropriate resolution; for (c), the employer must participate in an interactive process to determine if an accommodation can be made.
- Alternatively, employers can develop a written policy to allow employees who are not fully vaccinated to undergo weekly COVID-19 testing and wear a face covering in the workplace.
- Employers can have vaccination requirements that only apply to certain portions of their workforce, assuming justifiable business reasons. For example, a retail corporation may have employees working in stores and other employees performing intermittent telework. The employer may choose to require vaccination only for those in stores and make it optional for those working partly from home (in which case, the employer would have to require testing for the latter employees).
- Employers must pay for reasonable time off for employees to get vaccinations (up to 4 hours) and pay for reasonable associated sick time for the vaccine’s side effects.
- Employers do NOT have to provide or pay for testing (unless other laws, regulations or collective bargaining agreements require payment). Employers should check applicable state laws as some states require employees to pay for testing.
- The OSHA ETS rule does not apply to employees who work in an office without other co-workers or customers present, those working exclusively from home, or those working exclusively outdoors.
- Employees diagnosed with COVID-19 must be removed promptly from the workplace, regardless of vaccination status, and remain out until they meet criteria for returning to work.
- Employers must provide employees with the following: information about the ETS and workplace policies to implement the ETS; the CDC document “Key Things to Know about COVID-19 Vaccines”; information on protection against retaliation and discrimination; and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
- Employers must keep records of each employee’s non-vaccinated, partially or fully vaccinated status (including those who are not fully vaccinated because of a medical or religious accommodation), along with preserving “acceptable proof of vaccination.” Such proof includes, for example, the record of immunization from a health care provider, a copy of the U.S. CDC COVID-19 Vaccination Record Card, etc. Note that obtaining the information verbally is insufficient for compliance (although there are provisions for an attestation from employees whose proof of vaccination has been lost or stolen). Such records are medical records and must be maintained confidentially. Employers must also keep confidential records of weekly testing results if the employee adopts the testing policy.
- Providing records: The ETS requires employers to make available for examination and copying, to an employee, of that employee’s COVID-19 vaccine documentation and any COVID-19 test results, and to make such records available to anyone having written authorized consent of that employee. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.
- Preemption: OSHA clarified that the new rule preempts any inconsistent state or local laws that may ban or limit an employer’s authority to require vaccination, masks, or testing. Legal challenges are being filed and we will watch for future developments on this.
Centers for Medicare and Medicaid Services (CMS) and Federal Contractors: Note that the Centers for Medicare and Medicaid Services (CMS) has issued a similar rule covering healthcare employees, and covered employees must be vaccinated by January 4, 2022. The Federal Register rule can be found HERE; FAQs for the Rule can be found HERE. Further, the deadline for vaccination of federal contractors’ employees will also be January 4, 2022.
Click here for the California version of this eAlert
If you have any questions relating to this eAlert or any other COVID-19 issue, please contact NFC’s COVID-19 Response Team or please feel free to reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.