Not So Fast, OSHA: The Fifth Circuit Issues a Stay of the Emergency Temporary Standard Requiring Mandatory Vaccines or Testing for All Employers With 100 or More Employees

On November 4, 2021, the Occupational Health and Safety Administration (“OSHA”) issued its highly anticipated Emergency Temporary Standard (the “ETS” or the “Mandate”) requiring U.S. employers with 100 or more employees to either (a) implement a mandatory COVID-19 vaccination policy for employees; or (b) adopt a policy allowing employees to choose between vaccination or weekly COVID-19 testing. While we will describe the ETS and its requirements as issued below, the courts have already been asked to consider myriad legal challenges filed by both private employers and 26 states seeking to enjoin and declare the ETS unconstitutional. Based on the first ruling issued in response to these legal challenges, the future of the ETS is very much in doubt, at least as issued.

The Stay of the ETS

On Saturday, November 6, 2021, the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) in B.S.T. Holdings, L.L.C.  et al. v. Occupational Health and Safety Administration et al., No. 21-60845, granted the petitioners’ emergency motion to stay the enforcement of the ETS, citing to “grave statutory and constitutional issues with the Mandate.” The Fifth Circuit did not provide any further explanation of its specific concerns, notwithstanding its very conscious choice of the adjective “grave” in its very short, unpublished opinion. As part of the expedited judicial review of the ETS, the Fifth Circuit gave the government until the close of business on Monday, November 8, 2021, to file a response brief to the petitioners’ motion to stay and then gave the petitioners until the close of business on Tuesday, November 9, 2021, to file their reply brief. Presumably, the Fifth Circuit will then hold oral argument and issue an opinion that can then be the basis of an attempted appeal to the Supreme Court of the United States.

In addition to the proceedings before the Fifth Circuit, other challenges are pending before the Sixth, Eighth, and Eleventh Circuits of Appeal. The proceedings before the Eighth Circuit were brought by a number of states (Missouri, Arizona, Nebraska, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, and Wyoming) and private entities arguing that the ETS goes beyond workplace safety and into issues of general public health and, therefore exceeding OSHA’s scope of authority. The proceedings before the Sixth and Eleventh Circuits make similar challenges. Even with the stay issued by the Fifth Circuit, the other legal challenges should progress rapidly before the various courts so that arguments that may be raised before the Supreme Court are crystallized.

Understanding that how these challenges may ultimately play out is still very much uncertain, the ETS, as drafted, required employers with 100 or more employees to achieve full vaccination status or implement mandatory testing for unvaccinated employees by January 4, 2022. With the stay of the ETS, it is unclear whether and when this mandate may come into effort, but employers still should consider planning for the contingency that the ETS will be effective at some point in the future, including as early as January 4, 2022.

Who Is Covered by the ETS?

The ETS, as issued, applies to any employer that has 100 or more employees at any time while the ETS is effective. Notably, the threshold includes all employees, company or firm-wide, even if some of those employees are ultimately exempted from vaccine or testing due to individual circumstances, as discussed below. For example, an employer with 50 locations that each has only two employees would still be covered by this ETS. The threshold also includes any seasonal, temporary, and part-time employees but not any independent contractors. If an employer’s workforce fluctuates throughout the duration of the ETS, its provisions will apply to the employer during any period in which it has 100 or more employees.

Are There Any Exceptions to Employer Coverage?

Certain employers who are covered by other federal vaccine and testing mandates are excluded from the new ETS. Specifically, employers that are subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or healthcare providers that are subject to the Centers for Medicaid and Medicare Services (CMS) COVID-19 rule are not covered by the ETS.

Are There Any Exceptions to Employee Coverage?

Although all employees count toward the 100-employee threshold, some employees are exempt from the ETS’ requirements even if their employer is covered. Namely, employees who: (1) do not report to a workplace where other individuals (either customers or co-workers) are present; (2) work from home; or (3) work exclusively outdoors are not subject to vaccination or testing requirements. However, if these individuals who, for example, work from home, do occasionally come into the office or interact with other individuals indoors, then they will be subject to the ETS’ requirements discussed below.

Employees who have a disability or medical reason for refusing or delaying vaccination or who have sincerely held religious beliefs preventing vaccination are also still exempt from any vaccination requirement but are otherwise subject to testing and/or mask-wearing.

I’m a Covered Employer. How Do I Comply With the ETS?

If the ETS is declared enforceable, covered employers will be required to develop and implement a policy for their employees that either (a) requires vaccination of all employees (subject to the limited exceptions); or (b) requires vaccination or weekly testing and face coverings.

The ETS has four main requirements for employers:

1. Implement a Compliant Mandatory Vaccine or Vaccine/Testing Policy for Employees

A covered employer’s first option for complying with the ETS is to implement a policy that requires all employees (other than those who are exempt because of, for example, a disability or religious accommodation) to be fully vaccinated. Fully vaccinated status is defined as receiving both doses of either the Moderna or Pfizer vaccine or a single dose of the Johnson & Johnson vaccine. OSHA has not yet determined whether fully vaccinated status will require any booster shots in the future.

If employers do not want to adopt a mandatory vaccination policy, the ETS provides a second option for compliance: a vaccination/testing policy. If a covered employer chooses this option, the employer can give employees a choice between: (1) getting fully vaccinated; or (2) submitting to regular COVID-19 testing and wearing a face covering at the workplace. Importantly, employers can choose different policies for different portions of their workforce. For example, if a retail company has a customer-facing workforce and a portion of the workforce that works exclusively in offices, then the company could require mandatory vaccination for the customer-facing employees and give the vaccine/testing option to those employees who do not interact with customers.

Regardless of which policy the employer chooses, employers must determine employees’ vaccination status by requesting proof from employees. Acceptable proof includes (a) the Centers for Disease Control and Prevention (“CDC”) vaccination card; (b) records of immunization from a healthcare provider, pharmacy, or public health immunization system; (c) medical record reflecting vaccination; (d) another official document that contains the required information; or (e) a signed attestation by an employee who cannot provide another form of proof. If an employer previously determined the vaccination status of its employees prior to November 5, 2021, the employer does not have to re-evaluate vaccination status, but must still maintain such records and determine the status of any new employees.

If an employer chooses the vaccination/testing option, there are stringent requirements pertaining to the timing of the tests:

• For employees who report at least once every seven days to a workplace where other individuals (co-workers or customers) are present, they must be tested at least once every seven days and must provide documentation of their most recent test no later than the seventh day after they last provided a result; and

• For employees who do not report at least once every seven days (i.e., those who work from home for extended periods of time), they must be tested within seven days before their return to the office and provide the results either prior to or upon their return to the office.

The ETS sets out specific guidance on what form of testing for COVID-19 is acceptable. Unvaccinated employees must not be allowed to return to the workplace until they provide acceptable proof of a negative test. Furthermore, employees who remain unvaccinated (and subject to weekly testing) also are required to wear face coverings with limited exceptions (i.e., while eating or drinking or working alone in an enclosed room).

It is important to note that if an employer chooses to allow the vaccine/testing option, the ETS does not require it to pay for any of the costs associated with the required testing. However, employers can choose to pay for some or all of this cost and may be required to do so by state or local law, by contract, or any applicable collective bargaining agreements.

Regardless of which option is chosen, employers must maintain the applicable records of tests or vaccination as medical records separate from regular personnel files. These records must be maintained as long as the ETS is in effect. They also must be available to employees or their authorized representatives by the next business day following a request by the employee or their authorized representative. Not only that, but covered employers must make the number of vaccinated employees at a workplace along with the total number of employees available to employees by the next business day and to the government within four hours of any request. All other required information must be available to the government by the next business day.

2. Provide Required Information to Employees

In conjunction with whichever ETS-compliant policy covered employers adopt, employers also are obligated to provide certain information to their employees. Employers must relay the following in a language and literacy level that is appropriate for their workforce:

• The requirements of the ETS and the employer’s policies implemented in response;

• Information about the safety and efficacy of the COVID-19 vaccine provided by the CDC;

• The requirements of 29 CFR 1904.35(b)(1)(iv), which prohibit discrimination and retaliation under the Occupational Safety and Health Act; and

• The penalties under OSHA for knowingly providing false documentation (i.e., falsified vaccination records).

3. Provide Support for Employee Vaccination

Although covered employers are not required to pay for COVID-19 testing (if they choose to allow the vaccination/testing option), the ETS requires employers to allow paid time off for employees to be vaccinated. This includes both time to get the vaccine and to recover if necessary. Specifically employers must provide up to four hours of paid time off, including travel time, at the employee’s regular pay rate for employees to get the COVID-19 vaccine. These four hours cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave. If the employer chooses to provide vaccines on site, they must pay the employee for the time he or she spends getting the vaccine.

In addition to time off to receive the vaccine, employers must also provide reasonable paid sick leave for employees to recover from any potential side effects. Employers can require employees to take available sick leave for this purpose, but if an employee does not have any or enough sick leave available, they must still be provided the necessary time off.

4. Follow Required Guidelines to Deal With Positive COVID-19 Tests

The ETS also includes requirements regarding how employers must handle positive COVID-19 cases in the workplace. Most importantly, employers must maintain a policy that requires employees to report a positive COVID-19 diagnosis to the employer.

If an employee tests positive for COVID-19 (regardless of vaccination status), that individual must immediately be removed from the workplace. Employees who test positive for COVID-19 may only be allowed to return to work in the following circumstances:

• Receiving a negative result on a confirmatory nucleic acid amplification test following a positive antigen test;

• Meeting the requirements for returning to work set out in the CDC’s “Isolation Guidance”; or

• Being authorized to return to work by a licensed healthcare provider.

Employers are not required to provide paid time off for positive COVID-19 diagnoses under the ETS but may be required to do so pursuant to other laws or collective bargaining agreements.

If a positive COVID-19 diagnosis results in an employee’s hospitalization or death and is workplace related, the employer must report the incident to OSHA. For a fatality, the employer must report within eight hours of learning of it. For hospitalizations, the employer has 24 hours to report.

What if an Employer’s State Government Has a Conflicting Law?

A number of states and other political subdivisions have passed laws or ordinances prohibiting employers from requiring vaccination, testing, or face coverings. Given the political realities of the ETS, OSHA included express language that the ETS preempts all state or local rules relating to face coverings, testing, or vaccinations in the workplace. Therefore, pursuant to the ETS, covered employers cannot prohibit the wearing of face coverings (by employees or customers) and must require testing or vaccination even if their state, city, or municipality says otherwise.

Planning Ahead

Notwithstanding the Fifth Circuit’s stay, we recommend that employers who otherwise are covered by the ETS do two things: (1) continue to monitor pending proceedings, particularly those by the appellate courts with jurisdiction over their workforce; and (2) make conditional plans to comply with the ETS, knowing that it still could be effective, either as issued or as later modified by OSHA to address legal challenges.

If you have any questions about the new ETS and/or the status of the various challenges to the ETS, please contact one of the members of AGG’s Employment team.