OSHA’s COVID-19 Emergency Temporary Standard—Where Are We Now?

Employers are sure to have questions regarding OSHA’s Emergency Temporary Standard (ETS) addressing COVID-19 vaccines, testing and masking requirements that may apply to employers with over 100 employees.  Since OSHA first issued the ETS on November 5, 2021, there have been several court challenges and rulings that have impacted employer obligations.  Before we explain the ETS’ requirements, let’s look at where things stand with the legal decisions.

The day after the ETS became effective, the Fifth Circuit Court of Appeals issued an order blocking the ETS from taking effect on January 4, 2022.  This gave employers a bit of breathing room. Within a week of the 5^th Circuit’s order, challenges were pending in nearly every judicial circuit in the United States.   Given the number of challenges to the ETS, on November 16, 2021, the Judicial Panel of Multidistrict Litigation announced that the Sixth Circuit Court of Appeals would rule on the ETS challenges.

As the 6^th Circuit is generally conservative, we expected the ETS stay would be upheld pending review on the merits.  Surprisingly, on December 17, 2021, the 6^th Circuit dissolved the stay and revived the ETS, effective immediately.  Once the 6^th Circuit’s ruling was published, multiple parties and states filed an emergency appeal with the Supreme Court.  The Supreme Court accepted the appeal and ordered OSHA to file its brief in response by December 30, 2021.  The Supreme Court will hear oral arguments from petitioners and OSHA on January 7, 2022.

The multiple rulings on the ETS have left employers with many questions, namely—what do we do now?  While the Supreme Court will hear argument on the ETS, it is presently in force given the 6^th Circuit’s decision to dissolve the stay.  OSHA announced it will not issue citations for noncompliance with the ETS’ requirements until January 10, 2022, to give employers time to put the necessary policies in place.  Note however this grace period only applies to employers exercising reasonable, good faith efforts to come into compliance by January 10, 2022.

This means employers should take the following steps now to ensure they can demonstrate the necessary good faith efforts:

• Determine if you are covered by the ETS. You should work with your counsel to decide: 1) is your workplace typically covered by OSHA? 2) If yes, does your business have more than 100 employees nationwide? Note that Illinois is a covered Federal OSHA state.  This analysis should also examine whether your organization is exempt from the ETS because it falls under the Healthcare COVID-19 ETS or Federal Contractor mandate.

• If your workplace is covered by the ETS:

• • In a confidential manner, gather vaccine status information on your employees to create the required vaccination roster.

• • Develop the mandatory vaccine and/or testing/masking policies required by the ETS.  These policies should be tailored to your workplace.  The policies should address employees’ obligations to report positive COVID-19 tests, require positive COVID-19 employees to be removed from the workplace and require unvaccinated and not fully vaccinated employees to wear face coverings when indoors or when in a vehicle with another person.

• • Deliver information about your ETS policies and OSHA notices to your employees.  The required notices include Workers’ Rights under the COVID-19 Vaccination and Testing ETS and Information for Employees on Penalties for False Statements and Records.

• • Provide paid leave for employees to get vaccinated (up to 4 hours per shot) and a reasonable amount of time to recover from any effects caused by receiving the vaccine (up to 2 days).

• • Create a reporting and recordkeeping policy for COVID-19 related records.

• • Develop programs that allow you to conduct compliance training for your managers.  Like all workplace programs, your managers need to be well-versed in the ETS policies to ensure they are enforced effectively and fairly.

Employers may want to start training and distributing the required notices and policy information before the January 10, 2022 deadline to ensure you can show OSHA evidence of good faith compliance efforts if needed.  February 9, 2022 is the current deadline to have unvaccinated employees provide proof of a negative COVID-19 test, if the testing option is part of an employer’s policy.  Employers should also remember to check the requirement of any state you operate in, as state requirements may differ or be more stringent than the ETS.

Since the Supreme Court will hear argument on the ETS just three days prior to the January 10, 2022 deadline, we will be watching this matter closely and providing updates for employers as needed.

The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law.