OSHA’s Emergency Temporary Standard Regarding COVID Vaccinations for Large Employers

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Patricia Tsipras

November 5, 2021

January 26, 2022 Update: Yesterday, OSHA announced that it was withdrawing the vaccinate-or-test mandate for large employers.  However, employers should expect a new – perhaps more narrowly tailored – rule in the future.

January 14, 2022 Update: Yesterday, the United States Supreme Court stayed the Occupational Safety and Health Administration’s (OSHA) vaccinate-or-test mandate for large employers, finding that OSHA is authorized to establish safety standards for the workplace, but is not authorized to set broader public health standards. The majority of the Justices believe that OSHA’s mandate exceeds its authority to regulate the workplace. In a concurring opinion, Justices Gorsuch, Thomas, and Alito concluded that state and local governments, not the federal government, could impose mandates like the one OSHA sought to impose. Justices Breyer, Sotomayor, and Kagan dissented, saying that OSHA’s mandate falls within their core mission, that the public interests weigh in favor of enforcing it, and that the Supreme Court should not second-guess the experts. Labor Secretary Marty Walsh expressed disappointment in the decision and noted that OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.

December 20, 2021 Update:  On Friday, December 17, 2021, the United States Court of Appeals for the Sixth Circuit – with which all of the lawsuits related to OSHA’s Emergency Temporary Standard were consolidated – lifted the stay that the Fifth Circuit Court of Appeals put in place last month.  The decision already has been appealed to the United States Supreme Court.  OSHA will not enforce any of the requirements of the ETS until January 10, 2022, and does not intend to issue citations for non-compliance until February 9, 2022, as long as employers are exercising reasonable, good faith efforts to come into compliance with the ETS.

November 15, 2021 Update:  On Friday, November 12, 2021, the United States Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s Emergency Temporary Standard.  As a result, OSHA has suspended activities related to the implementation and enforcement of the Standard pending future developments in the litigation, which we expect will entail the consolidation of all similar lawsuits before one appellate court and appeals to the United States Supreme Court.

November 6, 2021 Update:  The United States Court of Appeals for the Fifth Circuit has stayed the mandate discussed below.  However, given the deadlines associated with the mandate, we recommend that employers work toward compliance.

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its Emergency Temporary Standard (ETS) to require employers with at least 100 employees to either mandate COVID-19 vaccination or mandate workplace mask-wearing and weekly COVID-19 testing for the unvaccinated.

The ETS requires all unvaccinated workers to begin wearing masks by December 5 and to provide a negative COVID-19 test on a weekly basis beginning January 4.  The deadline for federal contractors to comply has been pushed back to January 4.

Compliance with the ETS

1. 1. Policy – Develop, implement, and enforce a mandatory COVID-19 vaccination policy OR a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
   2. Vaccination Status – Determine the vaccination status of each employee, including obtaining acceptable proof of vaccination from vaccinated employees and maintaining a roster of each employee’s vaccination status.
   3. Provide Time Off – Support vaccination by providing reasonable time, including up to four hours of paid time, for employees to receive each vaccination dose, and reasonable time and paid sick leave to recover from any side effects.
   4. Testing – Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if they are in the workplace at least once per week) or within seven days before returning to work (if they are away from the workplace for one week or longer).  The ETS does not require employers to pay the costs associated with testing.  However, such payment may be required by other laws, regulations, or collective bargaining agreements.
   5. Notice of Positive Tests – Require employees to provide notice promptly when they receive a positive COVID-19 test or are diagnosed with COVID-19.
   6. Remove Sick Employees – Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19, and keep those employees out of work until they meet the criteria for returning to work.
   7. Masking – 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.
   8. Notice of Rights to Employees – Provide, in a language and at a literacy level the employee understands, (a) information about the requirements of the ETS and the workplace policies and procedures established to implement the ETS; (b) the CDC document entitled, “Key Things to Know About COVID-19 Vaccines”; (c) information about protections against retaliation and discrimination; and (d) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
   9. Reports to OSHA – Report work-related COVID-19 fatalities to OSHA within eight hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about them.  Employers can make such reports by (a) calling the OSHA Area Office that is nearest to the site of the incident (see www.osha.gov/contactus/bystate); (b) calling the OSHA toll-free telephone number, 1-800-321-OSHA (1-800-321-6742); or (c) submitting information through OSHA’s website at www.osha.gov.
   10. Make Records Available – Make certain records available for examination and copying to an employee or employee representative, including an employee’s COVID-19 vaccine documentation and any COVID-19 test results, as well as the aggregate number of fully vaccinated employees at a workplace and the total number of employees at that workplace.

Not all employees of a 100+ employer are covered 

Employees are NOT subject to the ETS if:

• They do not report to a workplace where other individuals are present
• They work from home
• They work exclusively outdoors

Rubin Fortunato is monitoring the lawsuits stemming from the ETS and will provide updates on our website accordingly.  Please contact us if you need assistance working toward ETS compliance.