Member Article

In November 2021, OSHA issued an Emergency Temporary Standard that applied to employers with 100 or more employees (the “ETS”). The ETS required those employers to either adopt a policy requiring their employees to be vaccinated against COVID-19 or adopt a masking and weekly testing regime that included removing employees who tested positive for COVID-19 from the workplace. After OSHA issued the ETS, a variety of legal challenges were filed against it, culminating in a decision by the Fifth Circuit staying enforcement of the ETS. 

Given that there were legal challenges filed against the ETS in multiple states, the appeals were consolidated into a randomly chosen federal appellate court: the Sixth Circuit Court of Appeals. On December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit’s stay of OSHA’s ETS, which required employers with more than 100 employees to require their employees to either be vaccinated or wear a mask and take weekly tests. 

The effect of the Sixth Circuit’s decision is that OSHA can resume implementation and enforcement of its large employer COVID-19 ETS. While the Sixth Circuit’s decision is likely to be appealed to the United States Supreme Court, this is a significant action towards a future in which large employers (i.e. those with more than 100 employees) may have to implement vaccination, testing, and masking policies that comply with the ETS. 

Indeed, on Saturday, December 18, 2021, OSHA announced that employers will have until January 10, 2022, to be in compliance with the non-testing standards and February 9, 2022, to be in compliance with the testing standards of the ETS. In both cases, the additional time granted to employers to come into compliance is conditioned on the employer engaging in reasonable, good faith efforts to come into compliance with the ETS. 

The following is the entirety of OSHA’s statement:

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 noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance 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.

The ETS remains subject to legal challenge in that the petitioners who challenged the ETS may appeal the Sixth Circuit’s decision to the United States Supreme Court, and the Supreme Court may reinstitute the stay. If it does so, that will impact the timeframe in which employers will have to come into compliance with the ETS. However, until that happens, it is reasonable for employers to begin preparations to comply with the ETS. Specifically, given this announcement by OSHA, employers may want to begin the process to develop and implement the policies and procedures required by the ETS. 

Employers should first determine if they are going to be subject to the ETS because they have, or will have, 100 or more employees during the duration of the ETS. If an employer determines it will be subject to the ETS, the employer should consider taking steps to ensure that it will be in compliance with the non-testing requirements of the ETS by January 10th. This would include:

• Determining whether the employer is going to adopt a mandatory vaccination policy or not require vaccinations and instead implement a masking/testing regime for unvaccinated employees;
• Drafting a written policy that implements the ETS, including addressing the requirements imposed by the ETS in regards to (a) time off for vaccinations and recovery from vaccinations, (b) masking, (c) testing, and (d) the data collection; 
• Collecting information regarding the vaccination status of employees; and
• Implementing the ETS’s masking requirements for non-vaccinated employees.

Employers subject to the ETS should also consider beginning preparations that will permit them to meet the testing requirements of the ETS by February 9, 2022, which will apply to any unvaccinated employees, including those who are granted accommodations from any mandatory vaccination policy due to medical, disability, or religious reasons. The ETS requires employers to adopt policies providing that:

• Unvaccinated employees must take a COVID-19 test at least every seven days or, if they are away from work for longer than seven days, no later than seven days before they return to work;
• Home COVID-19 tests are permissible, provided the employer proctors the test (i.e. views the employee taking the test and the results); and
• Employees who test positive are immediately removed from the workplace. 

For those states with a “State OSHA Plan,” which includes Alaska, Oregon, and Washington, employers may need to wait to see how the state OSHA agency implements the ETS as it may have different deadlines for compliance than what are stated in OSHA’s announcement. State OSHA agencies have 30 days to implement the ETS, and are required to adopt a standard that is at least as protective as the ETS. Some states may seek to adopt a more protective/restrictive ETS, while others (such as Alaska) may delay implementation of the ETS or seek to adopt a standard with significantly different requirements than the ETS based on the argument that their version of the standards are equally as protective as the ETS. 

Finally, federal government contractors with more than 100 employees are now placed in a difficult position. The ETS provides that employers who are subject to the federal government contractor vaccine mandate are not required to comply with the ETS. However, the federal government contractor vaccine mandate is currently stayed. Accordingly, federal government contractors who have more than 100 employees may need to pivot to be in compliance with the ETS, if the federal government contractor vaccine mandate is struck down or if the stay is not reversed. 

This continues to be a rapidly changing issue, and we will keep you updated on the latest events, including if the U.S. Supreme Court takes action that affects the Sixth Circuit’s decision to permit OSHA to move forward with ETS implementation. 

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.