On December 17, 2021, the 6th circuit court lifted the 5th’s circuit stay of OSHA’s ETS on COVID-19 vaccination and testing for employers with at least 100 employees. Multiple parties, including 27 states, have filed emergency motions with the U.S. Supreme Court to block the ETS. However, until we hear otherwise, it is essential that employers prepare to comply with the ETS that was issued on November 5, 2021.

OSHA quickly announced that it will not issue citations for noncompliance before January 10, 2022. The agency also stated it will exercise its discretion and not issue citations for noncompliance with testing requirements under the ETS before February 9, 2022, if an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

If you have any questions, please feel free to contact us.

Effective November 5, 2021, OSHA released the new emergency temporary standard (“ETS”) in response to President Biden’s September directive that employers with 100+ employees, develop, implement, and enforce a mandatory COVID-19 vaccination policy with an exception that employers may instead develop, implement, and enforce a policy allowing employees who have not been vaccinated to elect to undergo weekly COVID-19 testing and order a face covering at the work place.

What this means for employers:

Applies to:                                                   

“Covered employers” – Private employers with 100 or more employees (firm or corporate wide).

Does NOT apply to:

Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors.

Settings where employee provides healthcare services/support services and subject to requirements of Healthcare ETS.

Some employees of “covered employers” are not subject to the requirements if they are:

  • Employees who do not report to a workplace where other individuals are present
  • Employees while working from home
  • Employees who work exclusively outdoors

Key Requirements of OSHA’s ETS:

  • Develop-Implement-Enforce Employer policy on mandatory vaccination
    • The ETS takes effect immediately and the deadline for workers to complete the vaccine process is January 4, 2022.
    • EXCEPTION – Applies to employers that instead adopt a policy requiring employees to elect to whether to get vaccinated -or- to undergo weekly COVID-19 testing -and- wear a face covering while at work.
      • ETS does not specifically require employers to pay for any associated costs with testing—BUT there may be other laws/regulations for payment of testing by the employer
      • Covered employers must be in compliance by requiring a mask for any unvaccinated worker by December 5, 2021. Weekly testing is to begin on January 4, 2022.
  • Determine vaccination status of each employee
    • Obtain proof of vaccination
    • Maintain records of each employees vaccination status, AND
    • Maintain roster of each employee’s vaccination status
  • Support vaccinations by providing employees reasonable time, including up to 4 hours of paid time, to receive each dose of the vaccine AND reasonable time and paid sick leave to recover from possible side effects of vaccine after each dose.
    • Covered employers must be in compliance with the ETS’ paid time off standard by December 5, 2021.
  • Employee notification to employer | The ETS requires employers to:
    • Require employees to immediately notify them when they have tested positive or have been diagnosed with COVID-19;
    • Immediately remove any employee from the workplace who has tested positive or has been diagnosed with COVID-19 by a licensed healthcare provider; AND
    • Keep the employees out of the workplace until they have met the criteria to return to work safely.
  • Inform employees, in a language they can understand, about the following by December 5, 2021:
    • The requirements of the ETS and the workplace policy adopted by the employer;
    • The CDC document “Key Things To Know About COVID-19 Vaccines;”
    • Information about protections against retaliation and discrimination; AND
    • Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report any COVID-19 fatality and hospitalization to OSHA.
    • Fatalities to be reported to OSHA within 8 hours of learning about it
    • Work-related COVID-19 in-patient hospitalizations within 24 hours of learning about it.
  • Make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee – and to anyone with written authorized consent of that employee. Employer is also required to make available to an employee the aggregate number of fully vaccinated employees at the workplace along with total number of employees at that workplace.

Potential Penalties:

OSHA may fine a covered employer that does not comply with the ETS up to $13,653 for each violation of the standard. Employers that willfully or repeatedly violate the standard can be fined up to $136,532. However, the Build Back Better Act, if enacted, would raise the maximum fine to $700,000.

RECENT DEVELOPMENTS:

On November 6th, the 5th U.S. Circuit Court of Appeals granted an emergency stay of OSHA’s ETS requiring that those workers be vaccinated by January 4 or face mask requirements and weekly tests.

It is anticipated that the 6th U.S. Circuit Court of Appeals, which includes the State of Ohio, along with other U.S. Circuit Courts of Appeal will be issuing similar emergency stays. The pending lawsuits filed Friday concerning the ETS (along with any additional suits filed by Nov. 15, 2021) are expected to be consolidated before a single federal circuit court. That Court is expected to rule on whether previous grants or denials of temporary stays will stand and to weigh in on the constitutionality of and other challenges to the ETS mandate, subject to potential Supreme Court review.

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s ETS. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” OSHA has therefore suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

If you have any questions, please feel free to contact us.