On Friday, December 17, the Sixth Circuit Court decided to lift the preliminary injunction on implementation of the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), citing that, “OSHA had sufficiently demonstrated that measures against the coronavirus pandemic meet the standard laid out by Congress in the 1970 law that created the agency.”
The ETS requires that all businesses with 100 or more workers require their employees to either be fully vaccinated against COVID-19 or show a negative test weekly. The requirement to obtain vaccination status of all employees was to be implemented by December 6, 2021 and the weekly testing requirement for employees who have not received all doses required for a primary vaccination was to be implemented by January 4, 2022, but employers will now have until January 10 to obtain the vaccination status of all their employees and until February 9 to comply with the weekly testing requirements.
OSHA has updated its ETS webpage to state, “OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace. To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for non-compliance with any requirements of the ETS before January 10 and will not issue citations for non-compliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
An emergency appeal has been filed with the Supreme Court by state attorneys general who oppose the ETS. Emergency appeals are reviewed by the Supreme Court justice who is assigned to that circuit (Justice Brett Kavanaugh) or that justice can decide to distribute the application to the full court.
An ETS can only remain in place for six (6) months, as such, employers should also be aware that the ETS has proposed to make this a permanent standard and to have it trickle down to smaller employers. Part of the process for making a permanent standard is to receive comments from the public, and OSHA has extended the comment period for this rule by 45 days. Employers may submit written comments on any aspect of the ETS by January 19, 2022, to https://www.regulations.gov/ in Docket number OSHA-2021-0007, which is the only way that OSHA is receiving comments on the ETS. This process will allow employers and other interested parties, “to explain why they prefer or disfavor particular policy choices, and include any relevant studies, experiences, anecdotes or other information that may help support the comment.”
Please refer back to this blog post from HR Works which discusses the ETS and employer considerations in greater detail, including paid time off for vaccinations under the ETS. Employers are also encouraged to visit the OSHA ETS webpage which contains several resources for compliance assistance, including fact sheets and frequently asked questions (FAQs).
OSHA State Plans
OSHA allows states to develop their own workplace health and safety plans, as long as those plans are, “at least as effective” as the federal program. There are currently 22 states with State Plans covering both private sector and state and local government workers, and employers in those states will need to refer to any standard implemented by the state.
Employers with employees in a healthcare setting will need to remain in compliance with the specific provisions of the Healthcare ETS while it remains in effect. There has not been official word on what steps OSHA will take to extend compliance with this ETS, as an ETS can only be in place for six (6) months. The healthcare ETS went into effect on June 21, 2021, and would be set to expire on December 21, 2021. A link to the complete list of Healthcare ETS FAQs is available here.
Next Steps for Employers & How HR Works Can Help
Employers must establish a policy in compliance with the ETS; employers may establish a policy which requires mandatory vaccination for all employees or a policy which permits weekly testing as an alternative to vaccination. A sample policy and other compliance related resources, including a vaccination roster are available from HR Works or employers may use one of the sample policies provided by OSHA (See the section of the ETS webpage labeled, “Implementation” for OSHA’s sample policies). Employers must also provide employees with a copy of the Centers for Disease Control (CDC) document, “Key Things to Know About COVID-19 Vaccines”.
The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. Employers must consider and decide how they will collect vaccination status from employees and communicate that to employees ahead of January 10.
Employers must also consider to what extent they will assist unvaccinated employees with procurement of weekly testing and ensure that they have procedures in place to maintain a record of each test result required to be provided by each employee pursuant to the ETS.
Employers should also review and/or update their reasonable accommodation procedures and corresponding request forms and ensure the process for requesting an accommodation is clearly communicated to employees. Employers must also maintain on their vaccination roster whether an employee was provided an accommodation and whether that accommodation was for a medical or religious reason. Accommodation forms specific to the ETS (for medical or religious purposes) are also available from HR Works.
Because the ETS does not prohibit employers from having a mandatory vaccination policy, employers who do not wish to contend with weekly testing requirements for unvaccinated employees, may wish to consider whether they will require that all employees be vaccinated against COVID-19, keeping in mind obligations for reasonable accommodations due to medical conditions or religious beliefs.
As many states and localities have developed mandates contrary to the ETS and others have mandates that overlap, employers should seek guidance from their legal counsel where there is a conflict between the ETS and state/local mandates that they are unsure how to resolve. Employers who wish to wait to begin compliance efforts until a ruling is made by the Supreme Court are also encouraged to get guidance from their legal counsel on this approach.
Current HR Works clients may reach out to their Human Resource Strategic Partner or the Virtual Helpline for compliance assistance. If you are not currently an HR Works’ client, contact us at 1-877-219-9062 or firstname.lastname@example.org for assistance.
HR Works will continue to monitor this topic and provide updated information as it becomes available.