The information provided in this article was superseded by subsequent court rulings. As this remains an evolving situation, this article will remain published to track the history and progression of this issue. For the latest effective guidance, please click here.
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) for private employers to address the hazard of COVID-19 in the workplace. While this development was highly anticipated, particularly after the federal agency issued its previous ETS on July 21, 2021, which imposed vaccine mandates and testing requirements for federal employees and contracted workers, the new ETS has been met with some concern and consternation. Many employers have welcomed the creation of a regulation that aspires to achieve full workplace vaccination against the COVID-19 virus (and, indeed, were already contemplating instituting mandates of their own without the new rule). Others, though, have expressed concern for the new rule, including whether the ETS represents an overreach of federal authority and/or whether the ETS will create harmful down-stream costs, such as stagnant supply chains and worker shortages. Notwithstanding potentially polarized viewpoints on the ETS, however, employers should nonetheless be prepared for the changes they will have to make between now and early December, when the first set of obligations go into effect.
Requirements of the Vaccine Mandate
From a 10,000-foot perspective, the overarching purpose of the ETS is to “protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.”[1] To that end, the ETS states that “[c]overed employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”[2]
An employee is considered fully vaccinated for the purposes of the ETS two weeks after receiving the “primary vaccination” of an FDA approved vaccination. This means an employee is not considered fully vaccinated until they receive the single Johnson and Johnson dose or their second dose of either the Pfizer or Moderna vaccinations.[3] It is important to note that this language is tied to definitions issued by the CDC. So, to the extent that the CDC modifies the definition fully vaccinated, that modification would likely be incorporated into the ETS without further issuance from the Department of Labor.
General overview and covered employers
To determine whether a particular business qualifies as a “covered employer”, OSHA counts the number of total employees based in the United States for each employer. Importantly, the number of employees counted toward the 100-employee total is determined by counting employees at the employer level, not the individual location level, so employers with employees at multiple different locations must aggregate the total number of its employees at all locations towards their count regardless of vaccination status. Both full-time and part-time employees count towards the 100-employee threshold, as well as employees who currently work remotely. However, employees who work remotely might not be required to comply with the vaccination mandate or weekly testing requirement.
The provisions under the ETS are only applicable once an employer meets the 100-employee criteria and thereafter even if the employer subsequently falls below the 100-employee level. Some employers who do not meet the threshold as of December 6, 2021, for example, but who subsequently hire seasonal workers to meet demand, may find themselves subject to the ETS when they hit the 100-employee mark. As a result, employers who currently staff their workplace at a level in close proximity to the 100-employee threshold should consider whether to be proactive and draft written policies to comply with the rule even though they might not be subject to the ETS at present.
Compliance and enforcement deadlines
Although the rule is technically in effect as of its publication, two future deadlines for compliance have been established by OSHA. The majority of the ETS’ requirements must be met by December 6, 2021, while the remaining provisions related to employee testing policies must be met by January 4, 2022.
By December 6, 2021, employers must accomplish the following:
- “Establish, implement, and enforce a written mandatory vaccination policy.”[4]
- “[D]etermine the vaccination status of each employee”; “require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated”; “maintain a record of each employee's vaccination status and must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated”; and “maintain a roster of each employee's vaccination status.”[5]
- “Provide a reasonable amount of time to each employee for each of their primary vaccination dose(s),” including “up to 4 hours paid time [and] travel time, at the employee's regular rate of pay for this purpose.”[6]
- Require that employees give prompt notice of positive COVID-19 test/diagnosis and temporarily remove from the workplace any employee who tests positive.[7]
- Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes.[8]
The preparation of these new written policies and procedures will take time and the deadline is less than 30 days away, so an employer should not wait to see whether a court challenge to the ETS will be successful before beginning its preparations. Notably, however, if an employer has already instituted written policies for a vaccine mandate or required testing which are consistent with the ETS requirements, it will not need to prepare new policies as a result of the ETS.
Given that this workplace ETS implicates rights under both Title VII and the Americans with Disabilities Act, employers must consider employees’ requests for medical and/or religious accommodations to the vaccine mandate and provide exemptions as appropriate. However, employees for whom accommodations are made under these or other statutes must still meet the ETS’ requirements for regular COVID-19 testing and workplace masking. As for the January 4, 2022 deadline, employers must ensure that employees who are not fully vaccinated are tested for COVID-19 at least once per week and/or within seven (7) days of returning to work after a positive COVID-19 test result.
Testing and Masking Alternative to Vaccinations
The ETS includes an alternative to the mandatory vaccinations by allowing employers to implement a combination of testing and masking requirements.[9] This inclusion was met with some surprise as it was not part of the Administration’s initial announcement. Nevertheless, these options were presumably included to allow flexibility for employees that remain apprehensive to the vaccination, and to allow employers to select the option that is most appropriate for their particular business and workforce.
Testing requirements and employer record-keeping obligations
Unvaccinated employees must be tested at least once every seven days if they report to a workplace where other individuals such as coworkers or customers are present.[10] If an unvaccinated employee is returning to the workplace, whether it be from PTO or a remote assignment, the employee must be tested within seven days prior to returning to the workplace and provide documentation of a negative test result upon their return.[11]
Notably, employers are not required to pay for or provide the testing under the ETS unless the employer is otherwise required to do so under a local law, regulation, or through collective bargaining,[12] although nothing in the ETS prevents the employer from assuming these costs. Regardless, employers are required to retain a physical copy of each employee’s test results and these records are considered protected medical records and may not be disclosed unless authorized under federal law. These records are exempt from normal OSHA record retention schedules and instead must be maintained only for the period while the ETS remains in effect, to include any extensions of the ETS.[13]
In the event an employee tests positive for COVID-19, the employer is required to remove them from the workplace until they are eligible to return under one of three conditions:
- Receives a negative test result on a second confirmation test, which must be a COVID-19 nucleic acid amplification test (NAAT);
- Meets the CDC’s Return to Work Criteria under the most recent effective Isolation Guidance; or
- Receives a recommendation to return to work from a licensed healthcare provider.
It is important to note that these requirements also apply to vaccinated employees who receive notification of a positive test.
Masking requirements and employer restrictions on masking
The ETS mandates that employers require their unvaccinated employees to wear face coverings when indoors and in a vehicle with other individuals.[14] Additionally, the ETS specifies how the face coverings are to be worn, indicating that the covering must fully cover the employee’s nose and mouth. In some circumstances, the employer can forego the masking requirement, but only where the employer can show that wearing the covering is infeasible or creates a greater hazard that would excuse compliance with this paragraph (e.g., when it is important to see the employee’s mouth for reasons related to their job duties, when the work requires the use of the employee’s uncovered mouth, or when the use of a face covering presents a risk of serious injury or death to the employee).[15]
Although the bulk of the ETS focuses on the masking requirement in conjunction with unvaccinated employees, there are some general masking regulations. For example, the ETS prevents employers from prohibiting employees or customers from voluntarily wearing masks unless doing so would create a demonstrable hazard.[16] Further, the ETS explicitly notes that nothing in the regulation requires customers to wear face coverings.[17]
Individual Employee Exceptions
As indicated above, the ETS has potential to conflict with protections offered by other federal laws. The regulation specifically points to two possible issues and exempts any individuals from the requirements where they are entitled to “a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.” The ETS does not provide any additional guidance on evaluating such requests, but instead points employers to existing guidance issued by the Equal Employment Opportunity Commission.
In addition to the legal exemptions, the ETS clarified that the mandates do not apply to individuals working from home, or those that report to a workplace where there are no other coworkers or customers present.[18] However, the requirements are immediately triggered upon the employee’s return to a workplace where coworkers and customers are present. Thus, as a practical matter, an employee who works exclusively from his or her own home would not be required to comply with the ETS. Conversely, an employee that works from home three days per week but reports to the office twice weekly would need to be vaccinated or comply with the weekly testing requirements.
Enforcement and Penalties
Although the ETS was issued without the usual rule-making process, it is nevertheless effective immediately, and covered employers are subject to penalties for any non-compliance.[19] Like any other OSHA Standard or Rule, the ETS is subject to enforcement through OSHA’s investigation, citation, and penalty process. To aid OSHA’s investigations, the ETS requires employers to provide – within four business hours of a request – the company’s written vaccination policy, the aggregate number of vaccinated employees, and the total number of employees at that workplace.[20] Employers may also be required to provide other ETS-related records by the end of the next business day.
If OSHA finds a violation, it can issue a citation describing the violation, providing a reasonable time for abatement or correction, and proposing a penalty.[21] An employer has 15 days to contest a proposed penalty and seek a hearing before the Review Commission.[22]
The amount of any penalty varies with the severity of the violation. Adjusted for inflation in 2021, “willful” and repeated violations can trigger penalties as high as $136,532.[23] Serious violations – which involve a substantial probability of death or serious injury – and “other-than-serious” violations are subject to maximum penalty of $13,653 each.[24] The failure to correct a cited violation similarly is subject to a maximum penalty of $13,653 per day.[25]
Multiple Legal Challenges
The very day the ETS was published in the Federal Register, it was immediately challenged in a number of separate lawsuits. To date, at least 15 separate lawsuits have been filed in nine different U.S. Circuit Courts of Appeal, including the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits, as well as the Court of Appeals for the Federal Circuit in the District of Columbia.
Those suits include challenges by 27 separate states, a number of private companies and individuals, trade associations, staffing agencies, labor unions, schools, and religious organizations. The challenges are based upon a number of different grounds, but generally contend that the ETS exceeds OSHA’s statutory and constitutional authority.
In its initial responsive briefings, OSHA has defended the ETS as an appropriate response to an unprecedented global pandemic. OSHA contends the ETS reflects its deliberative and informed expert judgment about the measures that are necessary to mitigate the grave and evolving danger to employees from COVID transmission in American workplaces. Based upon the data it has collected, OSHA estimates that the ETS provisions will save 6,500 lives and prevent over 250,000 hospitalizations in the first six months it is in effect. OSHA accordingly contends that staying or invalidating the ETS will cost dozens or even hundreds of lives each day.
Court-ordered stay of enforcement
In one of the Fifth Circuit challenges to the ETS, a coalition of States and private businesses filed a motion to stay any enforcement of the ETS while the Court resolves the merits of the challenge. On Saturday, November 6, 2021, the very next day after many of the initial Petitions were filed, the Fifth Circuit Court of Appeals in New Orleans preliminarily granted that request and stayed any enforcement of the ETS pending further action of the Court, finding that the Petitioners had raised “grave statutory and constitutional issues.” After an expedited review, the Fifth Circuit reaffirmed the stay on the following Friday, November 12, 2021. That ruling reasoned that the ETS exceeds OSHA’s statutory authority, and that among other issues, serious constitutional concerns weigh in favor of staying the ETS’s enforcement pending final judicial review of the challenges.
Because multiple challenges have been filed in a number of different Circuit Courts, federal law provides a procedure for all those various cases to be consolidated in a single Circuit selected at random by the Judicial Panel on Multidistrict Litigation.”[26] The selection occurred on November 16, 2021 with the Sixth Circuit Court of Appeals being selected. The Sixth Circuit is the federal appellate court over Ohio, Michigan, Kentucky, and Tennessee. The Sixth Circuit will be able to modify, revoke, or extend the stay imposed by the Fifth Circuit. [27] However, the court has not set any timeline for hearing the issues and it could be weeks before any further determinations are made.
Ultimately, any decision regarding the stay will likely be appealed to the United States Supreme Court regardless of whether the assigned Circuit lifts or maintains the stay. Given the breadth and importance of the issues involved, the Supreme Court is likely to rule on the stay on an expedited basis, which will determine once and for all whether the ETS will be effectively suspended while the Circuit Court reviews the substance of the challenges, or whether the ETS will be enforced in the meantime.
Next Steps for Employers
Certainly, the new ETS from OSHA will create particular challenges for some employers in terms of creating and implementing new policies in a short time frame. However, OSHA has implicitly recognized those challenges and provided templates for these new workplace policies on its website that can be adapted to fit most employers’ needs. Employers should also carefully note that the OSHA’s standard, by its terms, preempts state law workplace requirements and, at present, any state law that would impose lesser obligations on an employer or otherwise seek to preclude enforcement of policies that mandate vaccines in the workplace would nonetheless be trumped by the federal ETS. Lastly, the ETS will only be in effect for six months from November 5, 2021, after which the requirements expire, and OSHA would need to consider whether to make the rule permanent
Regardless of how and how quickly the stay and the various legal challenges are resolved, employers with 100 or more employees should begin planning for the implementation of these measures in the meantime. Just as quickly as one court issues a stay, that stay can be lifted and the ETS reinstated at any point in time. Given OSHA’s position that these measures are absolutely necessary to protect millions of American workers from illness, hospitalization, and possible death, that agency is not likely to be sympathetic to employers who fail to timely implement these measurers based upon what may turn out to be a brief stay of the ETS’s requirements.
Many of the ETS requirements require planning and cannot be put into place overnight, so employers are wise to begin taking steps now. For instance, employers can make the important decision of whether to mandate vaccination for all employees as a condition of their continued employment, or to implement a compromise policy allowing unvaccinated workers to follow the testing and masking requirements instead. Employers can also draft the specifics of their policies, including testing protocols, and procedures to handle requests for medical and religious accommodations. Additionally, employers can begin to gather information about the vaccination status of their workers and roster that information for use in the event the ETS becomes effective in December.
Considering the Fifth Circuit’s Order staying implementation of the ETS and the pending lottery which will select a federal circuit to hear the combined issues, on November 15, 2021, OSHA announced that it was “suspending activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” It is unclear what impact, if any, this suspension will ultimately have on the procedures and deadlines outlined in the ETS. If subsequent litigation is favorable to the implementation of the ETS, the current deadlines would remain in effect absent a subsequent amendment to the standard. Employers should continue to prepare for the implementation of the ETS along current deadlines as outlined above until further guidance is provided by OSHA or the courts.
If you have any questions regarding the creation or implementation of the new ETS, please contact a Reminger employment practices attorney for guidance.
[1] See 86 FR 61402.
[2] Id.
[3] Proposed 29 C.F.R. § 1910.501(c).
[4] Proposed 29 C.F.R. § 1910.501(d).
[5] Proposed 29 C.F.R. § 1910.501(e) (“These records and roster are considered to be employee medical records and must be maintained as such records in accordance with § 1910.1020 and must not be disclosed except as required or authorized by this section or other federal law.”).
[6] Proposed 29 C.F.R. § 1910.501(f).
[7] Proposed 29 C.F.R. § 1910.501(h).
[8] Proposed 29 C.F.R. § 1910.501(i). This subsection, however, lists several exceptions to the face covering requirement, such as during times in which “an employee is alone in a room with floor to ceiling walls and a closed door.”
[9] Proposed 29 C.F.R. § 1910.501(g).
[10] Proposed 29 C.F.R. § 1910.501(g)(1)(i).
[11] Proposed 29 C.F.R. § 1910.501(g)(1)(ii).
[12] Proposed 29 C.F.R. § 1910.501(g)(1)(ii)(B); see also Id., Note 1.
[13] Proposed 29 C.F.R. § 1910.501(g)(4).
[14] Proposed 29 C.F.R. § 1910.501(i)(1).
[15] Proposed 29 C.F.R. § 1910.501(i)(1)(iv).
[16] Proposed 29 C.F.R. § 1910.501(i)(3).
[17] Proposed 29 C.F.R. § 1910.501(i)(5).
[18] Proposed 29 C.F.R. § 1910.501(b)(3)(i)
[19] Proposed 29 C.F.R. § 1910.501(m).
[20] Proposed 29 C.F.R. § 1910.501(l)(3).
[21] 29 U.S.C. §§ 658(a) & 666.
[22] 29 U.S.C.§ 659.
[23] 29 C.F.R. § 1903.15(d).
[24] 29 C.F.R. § 1903.15(d).
[25] 29 C.F.R. § 1903.15(d).
[26] 28 U.S.C. § 2112(a)(3).
[27] 28 U.S.C. § 2112(a)(4).
