OSHA‘s Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing, applying to private businesses with 100 or more employees, was published on November 5, 2021. All ETS requirements, except testing, were to be met within 30 days of publication or December 5, 2021. Testing requirements were to be complied with after 60 days of publication or January 4, 2022. Due to judicial stays and litigation, OSHA has provided that it 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.”
Leech Tishman Employment & Labor Practice Group attorneys Philip Toomey and Leah Sell have been keeping a close eye on legal developments and challenges, and have been examining what steps employers should take to effectively prepare for the new rule. Below are briefings and other resources to help employers navigate this new rule.
December 22, 2021 Briefing – OSHA’s Emergency Temporary Standard: Stay of Enforcement Lifted
As we have previously reported, the Fifth Circuit Court of Appeals issued a stay of enforcement of the OSHA Vaccinate or Test Emergency Temporary Standard. On Friday, December 17, a panel of the Sixth Circuit Court of Appeals, where all cases have been transferred, in a 2-1 decision lifted the stay. Absent intervention by the entire Sixth Circuit judges, or the United States Supreme Court, the OSHA ETS is immediately enforceable. The first of such compliance requirements was set to begin on December 4, 2021. The Department of Labor has announced that rather than a tiered structure of compliance, OSHA will adopt one compliance date for all the ETS requirements – January 10, 2022. This means that employers subject to the ETS have three weeks to comply. Such employers will need to finalize (or in some cases draft) their ETS compliant vaccination or vaccination/test alternative policy, communicate the policy to employees, collect required vaccination data, and if choosing the test alternative, enforce masking and testing requirements.
What Happens Next?
It is likely that some of the states challenging the OSHA ETS will file an emergency appeal of the lifting of the stay order to the full panel of the Sixth Circuit, or the United States Supreme Court. The odds of the stay being reactivated are highly unlikely. Employers should immediately come into full compliance with the ETS. Failure to do so subjects covered employers to substantial fines.
Recent Client Alerts & Articles
- January 17, 2022- COVID-19 in the Workplace- OSHA Hasn’t Gone Away
- January 13, 2022 – United States Supreme Court Stays OSHA Covid-19 Emergency Temporary Standard
- January 12, 2022- Status of OSHA Emergency Temporary Standard, Application to Truck Drivers, and State-Specific Action
- January 11, 2022 – DOL Says Insurers To Pay for COVID-19 OTC Testing
- January 10, 2022- Status of the OSHA COVID-19 Emergency Temporary Standard
- January 4, 2022- Minnesota OSHA Adopts Exempt Rule Requiring Vaccination or Weekly Testing
- December 23, 2021- U.S. Supreme Court Schedules Argument on OSHA COVID Vaccination Emergency Temporary Standard
- December 18, 2021- OSHA Emergency Temporary Standard Stay of Enforcement Lifted
- December 16, 2021 – Federal Appeals Court Lifts Nationwide Ban Against COVID-19 Vaccination Mandate for Certain Health Care Workers
- December 10, 2021 – Stop… Contractors and Listen: The Courts are Back with a Brand-New Injunction
- December 6, 2021- COVID-19 Vaccine Mandate- Update
- November 18, 2021 – Status of OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard
- November 16, 2021 – Challenge to OSHA Emergency Rule to Be Heard by Sixth Circuit
- November 9, 2021 – Employers Mark Your Calendar for December 5: OSHA COVID-19 Emergency Temporary Standard Requires Compliance in Time for the Holiday Season
- November 9, 2021 – OSHA Files Response to Stay of the Emergency Temporary Standard
- November 8, 2021 – OSHA COVID-19 Emergency Temporary Standard- New Litigation Filed
- November 7, 2021 – OSHA COVID-19 Emergency Temporary Standard- Litigation Update
- November 6, 2021 – Fifth Circuit Court of Appeals in New Orleans Issues Stay of OSHA’s Emergency Temporary Standard
- November 6, 2021 – Pittsburgh Business Times article “What Employers Need to Think About With New Vaccine/Testing Mandate”
- October 25, 2021 – Pittsburgh Business Times article “Attorneys look for clues to help employers get ready for vaccine mandate“
- September 20, 2021 – Bloomberg Law article “Biden Vaccine Orders Likely to Collide with State Mandate Limits“
- September 10, 2021 – If You Have 100 or More Employees You May Need to Require Proof of COVID-19 Vaccination
November 30, 2021 Briefing – OSHA’s Emergency Temporary Standard: Compliance Preparation
If you have been following the news regarding the OSHA Emergency Temporary Standard (ETS) on Vaccination and Weekly COVID-19 Testing, you have seen that the situation seems to change daily. As of November 17, 2021, OSHA has indicated that it has suspended activities related to the implementation and enforcement of the ETS amidst the pending litigation and Motion to Stay. All challenges to the ETS have been consolidated and assigned to the Sixth Circuit.
Pending the looming December 5, 2021 first compliance date for the ETS, what is an employer to do?
Leech Tishman still recommends that covered employers strongly consider taking appropriate “proactive steps” to avoid being caught flat footed if (or when) the stay is modified or lifted. Proactive steps include:
- Preparing (and having management finalize and approve) a draft written vaccination policy
- Drafting a compliance policy
- Developing a communication plan to be implemented if the stay is lifted or the ETS upheld
- Budgeting for anticipated expenses
- Preparing a roster to document vaccination status of all employees
- Complying with state OSHA rules, other mandated vaccination orders (including those applicable to federal contractors and healthcare workers), and all other applicable state and local health orders and mandates
Leech Tishman Employment & Labor Practice Group attorneys Philip Toomey and Leah Sell provided updates on the pending litigation and discussed what steps employers should take to effectively prepare for the new rule. Some employers may wish to just start a voluntary vaccination and testing program. For such employers, we discussed best practices for testing and wage and hour issues.
November 10, 2021 – Back to Business: COVID-19 Vaccination, Testing, and Religious Accommodation
Now that COVID-19 vaccine mandates have been imposed by many private and public employers, imposed on government contractors, and the subject of an OSHA emergency temporary standard, many employers are forced to resolve requests for religious accommodation.
Requests for religious accommodation are the overwhelming bulk of accommodation requests related to the COVID-19 vaccine, and employers have not had easy to understand guidance to sort legitimate requests from others that are little more than consciousness or political objections wrapped in “religious” overtones or language. When, and “if,” to refuse or challenge is not always a clear choice or easy decision. While last week the EEOC provided additional guidance and a form request that employers can utilize, the guidance is still very general and the area fraught with difficulties.
Leech Tishman Employment & Labor Practice Group attorneys Philip Toomey and Leah Sell host this one-hour overview of the EEOC guidance, and offer some helpful “hints” on how to respond to, and process, requests.
November 5, 2021 Briefing – OSHA’s Emergency Temporary Standard: Updates and Next Steps
Phil Toomey and Leah Sell offered this complimentary 1-hour briefing to discuss the potential impact of the ETS and what steps employers should take to effectively prepare for the new rule.
What does the ETS mean for covered employers? Phil & Leah discuss:
- “Two-thirds of American workers” will now be covered by vaccination rules, according to a release from the White House.
- Covered employers are required to provide paid-time for their employees to get vaccinated, and provide sick leave for employees to recover from side effects of vaccination, if needed.
- Unvaccinated employees will be required to produce a negative COVID-19 test on a weekly basis. Unvaccinated employees will also be required to wear masks.
- Covered employers are subject to requirements for reporting and recordkeeping.
October 22, 2021 Briefing – OSHA’s Impending Emergency Temporary Standard: Updates, Legal Challenges & Ongoing Employer Preparation
As we continued to keep a close eye on legal developments and challenges, national Employment & Labor Chair Philip A. Toomey and Associate Leah K. Sell offered a complimentary 45-minute briefing to provide an update on:
- Expectations regarding what the final rule will look like
- How the ETS may effectively deal with OSHA’s requirement to deal with immediate workplace hazards
- Current state-level legal challenges to the ETS
- Recent case studies
- Employer preparation: recordkeeping requirements, methodology for ‘counting’ employees, and workplace privacy issues
September 21, 2021 Briefing – Proof of Vaccination and Weekly COVID-19 Testing: OSHA’s Impending Emergency Temporary Standard & What It Means for Businesses Employing 100+ Individuals
Following the September 9, 2021 announcement that the Department of Labor’s Occupational Safety and Health Administration was developing an Emergency Temporary Standard (ETS), Employment & Labor Chair Philip A. Toomey and Associate Leah K. Sell hosted a 1-hour briefing to answer frequently asked questions, as many employers were already exploring vaccination and testing options and establishing secure protocols and procedures to track vaccination and testing status.
During this informative briefing, we answered frequently asked questions including;
- Who is subject to the ETS? How might the 100-employee threshold be calculated?
- What is the proposed timeline for the ETS development and compliance deadline?
- Who will pay for the testing?
- How do employers mandate it? What about encouragements, incentives, penalties, and assessments?
- Will employers need to provide paid leave related to the vaccination and testing requirements?
- What reporting and recordkeeping requirements might there be?
- What about employee privacy?
- If it is mandatory, and an employee refuses, what happens?
- How will the ETS interact with current state prohibitions on employer and government vaccine requirements?
- Are there legal challenges to the ETS?
- How should employers approach communication with employees to provide protection on issues including accommodation, discrimination, collection and retention of personal health information, and avoiding medical examination?