On December 17, 2021, a 2-1 ruling from a three-judge panel of the Sixth Circuit Court of Appeals lifted a stay on the Occupational Safety and Health Administration’s COVID-19 vaccination and testing Emergency Temporary Standard.  The ETS, which was issued by OSHA on November 5, 2021, was immediately stayed nationwide by the Fifth Circuit Court of Appeals on November 6, 2021.  Because legal challenges were filed in numerous Courts of Appeal, the litigation was consolidated in the Sixth Circuit Court of Appeals, which was randomly selected through the Judicial Panel on Multidistrict Litigation lottery.

Writing for the majority, Judge Jane Stanch stated, “Based on the [Occupational Safety and Health Act's] language, structure and Congressional approval, OSHA has long asserted its authority to protect workers against infectious diseases….OSHA relied on public health data to support its observations that workplaces have a heightened risk of exposure to the dangers of COVID-19 transmission."  The Court held OSHA likely established COVID-19 exposes employees to a “grave danger” because OSHA demonstrated “the pervasive danger that COVID-19 poses to workers – unvaccinated workers in particular – in their workplaces,” and that OSHA likely established the ETS’s vaccination, testing, and masking requirements are necessary to reduce worker exposure to the “grave danger” associated with COVID-19.

Following the Sixth Circuit’s ruling, OSHA announced that it will not enforce any requirements under the ETS until January 10, 2022, to provide employers sufficient time to come into compliance.   Additionally, OSHA will not issue citations for noncompliance with the standard's testing requirements before February 9, 2022, so long as an employer is “exercising reasonable, good-faith efforts to come into compliance with the standard.”

So far, nine different applications for emergency appeal have been filed with the Supreme Court asking the Court to stay the enforcement of the ETS.  Applications for emergency relief are reviewed by the Supreme Court Justice assigned to that circuit, which in this case is Justice Brett Kavanaugh.  Justice Kavanaugh may either send the application to the full Supreme Court to consider or he may decide the request on his own.  Justice Kavanaugh has asked for the federal government’s response to the challenges by December 30, 2021.

Who is Covered by the ETS?

The ETS applies to private employers who are not covered by an OSHA-approved State Plan and who have 100 or more employees.   The following workplaces are not covered:  (1) workplaces covered under the Safer Federal Workforce Task Force guidance for federal contractors and subcontractors; (2) workplaces that are covered by OSHA’s healthcare ETS released earlier this year or the Centers for Medicare and Medicaid Services (CMS) rules; (3) workplaces with fewer than 100 employees total; and (4) public employers in states without OSHA-approved State Plans.  Even for covered employers, the ETS will not apply to employees who do not report to a workplace where other employees or customers are present or employees who work exclusively outdoors.

Key Requirements of the Emergency Temporary Standard

Under the new rule, all employers with 100 or more employees at any time the ETS is in effect have two options:

(1) Implement and enforce a mandatory COVID-19 vaccination policy, or

(2) Implement and enforce a policy that requires employees to either (a) be fully vaccinated from COVID-19 or (b) undergo COVID-19 testing every 7 days and wear a face covering at work.

If an employer chooses to implement and enforce a mandatory COVID-19 vaccination policy, the only exceptions for the vaccine mandate can be: (1) a qualifying disability under the ADA that prevents the employee from receiving the vaccine; (2) a doctor recommendation that the vaccine be delayed due to a medical contraindication for the vaccine; or (3) a sincerely held religious belief that prevents the employee from receiving the vaccine.

Other key requirements for covered employers include:

• Proof of Vaccination Status – Employers are required to determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, and maintain records and a roster of each employee’s vaccination status.
• Paid Leave – Employers are required to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose. OSHA presumes that if an employer makes available up to two days of paid sick leave per vaccine dose for side effects, the employer will be in compliance with this requirement.
• COVID-19 Testing – Employees who are not fully vaccinated must be required to provide a negative COVID-19 test every 7 days and must wear a mask covering their nose and mouth at work. The testing must be done using an FDA authorized COVID-19 test, and it cannot be both self-administered and self-read unless it is observed by the employer or an authorized telehealth proctor.  Employers must maintain a record of each test result. The rule does not require that employers pay for testing.
• Reporting COVID-19 Cases - Employers must report employee work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the in-patient hospitalization and employee work-related COVID-19 fatalities within 8 hours of the employer learning about the fatality.

Compliance

Employers should note that conflicting state or local law does not excuse compliance with the ETS.  Penalties for non-compliance are $13,653 for each “serious” violation and up to $136,532 for repeat or willful violations.

Burr & Forman will continue to monitor developments regarding the COVID-19 pandemic and will provide additional information about the OSHA Emergency Temporary Standard and vaccine mandates to keep our clients up to date on all of the applicable legal requirements.  For more information about COVID-19 vaccination mandates and how they may impact your operations, please contact Amy Jordan Wilkes at awilkes@burr.com or the Burr & Forman attorney with whom you usually work.