Stay Lifted, OSHA Enforcing Covid-19 Vaccine and Testing Rule

A split three-judge panel of the U.S. Court of Appeals for the Sixth Circuit on December 17, 2021, granted the Government’s motion to dissolve the stay of enforcement of the Occupational Safety and Health Administration (“OSHA”) COVID-19 Vaccine and Testing Emergency Temporary Standard “(ETS” or “Rule”). While the challenge is now before the U.S. Supreme Court, employers should begin preparing to comply with the ETS’s requirements.

Oral argument before the Supreme Court is not scheduled to occur until January 7, 2022, which means that some of the ETS’s requirements will likely go into effect. On its website, OSHA announced its intent to enforce this Rule and to extend the time for employers to comply to January 10, 2022, for provisions other than testing for employees who have not competed the entire primary vaccination, and February 9, 2022, for testing for employees who have not received all doses required for a primary vaccination. The Agency will not issue citations for noncompliance prior to those dates if an employer is exercising reasonable, good faith efforts to come into compliance with the standard. In a webinar presented by the Agency, OSHA representatives announced that additional guidance will be forthcoming, and that the Agency is working with the Department of Labor Wage and Hour Administration to provide guidance about compensability of time worked related to the ETS. Further, OSHA extended the comment period for the ETS to January 19, 2022.

As a result of this legal development, employers with 100 or more employees will be required to establish, implement, and enforce a mandatory policy requiring that employees either be fully vaccinated, subject to medical or religious exemptions, or a written policy permitting each employee to choose between vaccination or providing proof of weekly testing and wearing a face covering. Employees who work exclusively from home or work outdoors are counted for the threshold 100-employee coverage of the ETS, which means that the employer must have a written policy; however, the ETS requirements do not apply to employees who work exclusively outdoors or remotely and have no contact with employees or customers. As part of the ETS, employers will need to confirm their employees’ vaccination status and maintain those records except for those workers who work exclusively remotely or outdoors, since the ETS doesn’t apply to them. Further, employers are required to provide up to four hours of paid time for each primary vaccination series dose, that includes travel time and to provide a reasonable amount of paid sick leave to recover from any side effects experienced following each primary vaccination series dose; but again, these requirements do not apply to the workers exempted from application of the ETS. Employers who fail to follow the standard may be subject to penalties.

Employers who have operations in Florida and Texas must address other laws that conflict with the ETS, and employers with only one employee in New York City must comply with that city’s own vaccine mandate. A newly enacted Florida statute prohibits private employers in Florida from terminating an employee due to a vaccine mandate without providing requested exemptions, including medical, including actual or anticipated pregnancy, religious beliefs, COVID-19 immunity, periodic testing, and personal protective equipment (“PPE”). Texas Governor Abbott issued an Executive Order that no entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19. New York’s Mayor de Blasio announced a first-in-the-nation vaccine mandate for private-sector workers to take effect on December 27, 2021, applicable to approximately 184,000 businesses. It does not appear that the New York mandate applies to any employees who do not work in the city.

It is important for employers to understand their legal obligations, particularly where federal and state laws conflict, or where local jurisdictions have adopted their own mandatory vaccine regime, and to consult with employment counsel in light of these impending deadlines. 

NOTE: This post does not address the vaccine mandates for covered federal contractors and subcontractors subject to Executive Order 14042 that has been enjoined or the vaccine mandate for healthcare workers that has been enjoined in several states and will be the subject of oral argument before the Supreme Court on January 7, 2022, along with the OSHA ETS.