OSHA Reacts to COVID-19 Pandemic and Issues Vaccine-or-Testing Mandate: What Employers Need to Know (Update)December 21, 2021 | Nicholas Ruble and Elizabeth Miller
On December 17, 2021, the Court of Appeals for the Sixth Circuit dissolved the stay issued by the Court of Appeals for the Fifth Circuit on November 12, 2021. All of the petitions challenging the ETS filed across the country had been consolidated in the Sixth Circuit for adjudication.
The three-member panel issued a 2-1 decision dissolving the Fifth Circuit’s stay. The standard for OSHA to issue its ETS is whether it is (1) necessary to protect employees from (2) a grave danger. The dissent provided a preview of what arguments to expect before the Supreme Court. The dissent pointed out that “necessary” can mean either “useful” or “indispensable,” and which definition is applied may well decide the case. Choosing the latter definition, the dissent found that OSHA had not proved that the vaccine-or-test mandate was “indispensable” to solving the COVID-19 pandemic. The dissent also questioned whether OSHA could establish that COVID-19 is a “grave” workplace danger, as opposed to a danger encountered in all aspects of life.
The majority countered that Congress could not have intended “necessary” to require “the most narrowly tailored” response from OSHA. The majority also credited OSHA’s findings that traditional workplaces are particularly ripe for transmission, placing workers at heightened risk while at work, and therefore have established a “grave danger” of COVID-19 transmission in the workplace. Judge Gibbons wrote a separate concurrence, noting that because OSHA has been tasked by Congress with making policy, the Court should not substitute its judgment for that of the agency.
Following issuance of the decision dissolving the stay, OSHA announced via a litigation update that it will not issue citations for noncompliance with any ETS requirement before January 10, 2022, except for the testing requirement. Enforcement of the testing requirements under the ETS will not begin until February 9, 2022, as long as the employer is “exercising reasonable, good faith efforts to come into compliance with the standard. For more information about the specific requirements, see our original blog post below.
No party has so far indicated that it will petition the Sixth Circuit for rehearing en banc. The deadline to do so is December 31. The challengers to the ETS may be eager for a battle before the high court, rather than to seek rehearing. The Supreme Court has already received numerous emergency applications to freeze the Sixth Circuit decision, and has asked for responses to the challengers’ requests by December 30. Justice Kavanaugh will handle referral of the case to the full Court for review. However, grant of the application is not a foregone conclusion, as the Court recently rejected a challenge to New York’s regulation requiring healthcare workers to receive a COVID-19 vaccine.
In the event the Supreme Court accepts the case for review, there is no doubt interpretation of OSHA’s enabling act will be front and center. However, in an emergency application filed by a group of 27 state attorneys general (including Missouri and Kansas) assert that the ETS also violates the Tenth Amendment, the Commerce Clause, and the Non-Delegation Doctrine. Religious groups have likewise asserted that the religious exemptions are inadequate and violate the First Amendment and the Religious Freedom Restoration Act of 1993. The state attorneys general requested that the Supreme Court impose an emergency stay of the ETS pending review, or in the alternative, grant expedited review and strike down the ETS.
Original Post 11.15.2021:
Since President Biden’s September announcement that employers with 100 or more employees must require vaccination or weekly testing of their employees, observers have waited anxiously for details from the Occupational Safety and Health Administration. The new Emergency Temporary Standard (ETS), published by OSHA in the Federal Register on November 5, 2021, contains three main components: full vaccination, or weekly testing of employees who are not “fully vaccinated” (with attendant recordkeeping requirements), and a face covering requirement. These components are discussed in detail below. As employers and practitioners begin to navigate the ETS requirements, they should keep in mind these important points:►Starting December 5, 2021, unvaccinated employees must wear face coverings.
►Starting January 4, 2022, companies must implement and enforce a written mandatory vaccine policy. Alternatively, a company may adopt a written policy that gives its employees a choice to either become fully vaccinated or undergo weekly testing and wear a face covering at work.
►An employer’s vaccine requirement is still subject to Title VII and the Americans with Disabilities Act. Employees with a sincerely held religious belief or practice contrary to vaccination or people who cannot be vaccinated due to a disability must be accommodated, unless accommodation would cause “undue hardship” on the employer. The EEOC has provided detailed guidance on what constitutes an “undue hardship” under the ADA. [Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA]
►A person is not considered “fully vaccinated” under the ETS until two weeks after they receive the final vaccine dose (or single dose of the Johnson & Johnson vaccine). Even employees who have received the full dosage will be subject to weekly testing requirements until two weeks has elapsed from the final dose. Employers should encourage workers who plan on getting vaccinated to do so now to avoid the weekly testing requirements.
►OSHA intends for the ETS to preempt all inconsistent state and local laws and regulations, including prohibitions on vaccine mandates and mask requirements.
►OSHA does not intend for the ETS to supplant collective bargaining agreements with terms that exceed OSHA requirements.
►On Friday, November 5th, a three-judge panel for the Fifth Circuit Court of Appeals issued an emergency stay of the ETS, citing “grave statutory and constitutional issues.” Petitioners moved for a permanent injunction and the Court is proceeding with an expedited briefing schedule. It is possible that the entire rule will be struck down by the Court, or that only parts of the rule will survive this permanent injunction stage. It is also unclear whether the stay applies in states outside of the Fifth Circuit (which covers only Texas, Louisiana, and Mississippi) and whether the Court will refer the case to the Multi-District Litigation Panel for consolidation with other cases filed around the country. Another U.S. Circuit Court of Appeals – the Seventh Circuit – has weighed in on COVID vaccination requirements, handing down in August a forcefully written opinion upholding Indiana University’s vaccination requirement for its new and returning students. We will continue to update this blog as these cases develop.
How do you know if the ETS applies to your company? Consistent with the ETS, counting an “employee” should be interpreted very broadly. OSHA explains that the 100-employee threshold was determined based on administrative feasibility for the employer, rather than on likelihood of community spread, with smaller businesses being less able to easily absorb additional administrative costs.
Under the ETS, all employees must be counted, regardless of where they are located and across however many facilities. The ETS does not differentiate between part-time and full-time employees (independent contractors do not count toward the 100-employee threshold). While remote workers and employees who work exclusively outside are not subject to the vaccine or testing requirements, they do count towards the 100-employee threshold. For example:
►A company with 50 full-time and 50 part-time employees at one facility has 100 employees and is subject to the ETS.
►A company with 50 full-time employees at one facility and 50 full-time employees at another facility in a different city has 100 employees and is subject to the ETS.
►A company with 80 full-time employees at one facility and 20 temporary employees provided by a staffing agency has 80 employees and is not subject to the ETS.
►A company with 50 full-time in-person employees and 50 remote workers has 100 employees and is subject to the ETS even though the remote workers are not subject to vaccine or testing requirements, except when visiting an in-person workplace.
►A franchisor company with 100 employees is subject to the ETS, but an individual franchisee of that company with only 25 employees is not subject to the ETS.
The most groundbreaking element of the ETS is the authority it gives employers with 100 employees or more to require each employee to reach “fully vaccinated” status, with few exceptions.
a. Vaccination Status
Employees who are not excluded from the ETS (that is, employees who are 100% remote or exclusively outdoors) must provide proof of vaccination to the employer. Proof of vaccination may be in the form of a state issued card – which may be scanned or photographed from a phone and e-mailed – a QR Code, Apple Wallet ID, or similar electronic vaccination card.
If the employee cannot provide proof of vaccination, the employee may provide a signed statement attesting to: (1) their vaccination status (either full or partial); (2) their vaccination card being lost or stolen, and the employee has not been able to secure a copy despite efforts to do so, (3) a description of the facility and the provider of the vaccination; and (4) a declaration, certification, or oath that the statement is true and accurate and acknowledging that providing false information may subject the employee to criminal penalties.
Employees who do not meet one of the proof of vaccination requirements must be treated as not fully vaccinated, and they are subject to weekly testing.
The employer is required to receive and process requests for medical or religious accommodation and provide accommodation as necessary.
b. Paid Leave
The ETS requires employers to provide at least four hours of paid sick leave during the workday for employees to get vaccinated. Employers must also provide a “reasonable time and paid sick leave” to recover from the side effects of the vaccine for each dose. OSHA estimates the time to recover from vaccine side effects may range from zero to 1.8 days, on average. Employers may require their employees to use banked sick time, but cannot require employees to go into the negative on sick time or use vacation or other banked PTO.
Absent a collective bargaining agreement, company policy, or state or local law to the contrary, nothing in the ETS requires employers to provide paid leave to employees who miss work due to being diagnosed with COVID-19.
Any employee who is not “fully vaccinated,” including those who decline vaccination or are exempt for medical or religious reasons, are subject to the ETS testing requirement. These employees must provide a negative COVID-19 test every seven days before they may enter the employer’s facility. The ETS requires that tests cannot be both self-administered and self-read by the employee. That is, an employee may not purchase an over-the-counter COVID-19 test, perform it on herself, and then provide the results to the employer. An employee may provide a result from a third party (such as a drive thru or community-testing clinic) including a health care provider. Alternatively, the employer may conduct an approved OTC COVID-19 test on-site prior to entry. An approved OTC rapid test kit may be used if a manager observes the employee open the approved kit, perform the test (usually a nasal swab), and the manager observes the results. Employees who do not provide proof of a negative test must be kept off the premises until a negative test is provided.
Employees who do not report to a physical workplace at least once every seven days do not need to be tested, but they must provide a negative COVID-19 test before entering the workplace. The test result must be within the previous seven days.
Employers are not required to pay for any costs associated with testing, subject to a policy, collective bargaining agreement, or other law. However, some states mandate that employers not pass on costs for medical requirements on to employees. In addition, the ETS has sparked debate about whether insurance companies will cover the cost of employer-mandated testing because the Families First Coronavirus Response Act requires health plans to pay for COVID-19 testing that is deemed “medically necessary.” Thus, insurance companies will likely consider ETS testing to be a “screening” that is not medically necessary and thereby avoid covering the cost for the ETS tests. As a result, it is critical that employers and all non-fully-vaccinated employees understand whether an employee’s workplace is covered by a state law that forbids an employer from passing on this cost. Employers should also identify locations of low or no-cost COVID-19 testing sites, to ascertain how much out-of-pocket cost may be imposed on the employee.
Face Covering Requirement
While the vaccine or testing requirements have dominated the ETS headlines, the ETS also includes a face covering requirement which goes into effect on December 5, 2021. All non-fully-vaccinated employees must wear a face covering while indoors or in a vehicle, except: when the employee is alone in a room with floor to ceiling walls and a closed door; for a limited time while eating or drinking or for security checks; while wearing a respirator or other face mask (such as surgical mask); or when wearing a mask is infeasible or creates a greater hazard than wearing a mask.
Under the ETS, face coverings must include at least two layers of fabric, wrap around the ears or head with elastic, and fit snugly around the nose and mouth. Gaiters are not excluded by the ETS, but they must have at least two layers of fabric, fit snugly, and have no large gaps on the sides. The ETS neither requires nor prohibits an employer from paying for face coverings.
Employers must maintain a record of each employee’s vaccination status, a copy of each employee’s proof of vaccination, and/or copies of unvaccinated employees’ COVID-19 test results for the duration of the ETS. These records must be kept separate from personnel files and be treated as confidential medical records. The employer must also maintain a separate roster of all employee vaccination statuses.
While employers are not required to conduct investigations or take steps to verify medical information, any employer who knowingly accepts false medical information is subject to civil or criminal penalties under OSHA’s recordkeeping rules.
Generally, OSHA enforces its standards by assessing penalties. While states may operate their own Occupational Safety and Health Plans, those states are required to adopt maximum penalty levels that are at least as effective as the penalty levels of the Federal OSHA. OSHA’s maximum penalty amounts are:
Type of Violation
$13,653 per violation
Failure to Abate
Willful or Repeated
$136,532 per violation
While there are pending efforts, including proposed legislation in some states, to increase the penalty maximums by more than 15%, even the current penalty levels will likely deter employers from attempts to sidestep the ETS, in light of the sheer volume of potential penalty exposure based on the number of non-fully-vaccinated employees who may be considered separate and repeated violations at any given company. As a practical matter, however, OSHA may lack the capacity to aggressively enforce the ETS given that the standard is expected to apply to more than 100,000 companies. Thus, OSHA will likely conserve its resources to enforce ETS-related penalties on larger, big-name, companies that may serve as cautionary tales in the news.
Time is of the essence. Employers and practitioners should take the following steps now, to ensure ETS compliance:
►provide employees with ample notice of the face covering mandate which goes into effect on December 5, 2021, and the January 4, 2022, vaccination deadline. Remember, employees who are not two weeks past their final vaccine dose are not “fully vaccinated” and are subject to weekly testing after January 4, 2022. For recipients of the Moderna and Pfizer vaccines, this means the first dose should be administered by November 23, 2021, to avoid any weekly testing;
►determine what will be included and administered as part of the employer’s testing program, which should be included in the employer’s written policy. When developing its testing program policy, an employer should consider whether testing will be provided at the employer’s premises, whether employees will be required to independently schedule tests, and whether employees may bring an OTC test with them to be administered at work;
►prepare a written policy that requires either vaccination or a weekly testing option, and distribute the policy to employees;
►determine how employees will be required to provide proof of vaccination or negative tests (e.g., an online portal, submit to HR or a specific manager, via e-mail);
►collect vaccination records from fully and partially vaccinated employees;
►consult with local health officials, hospitals, or clinics about hosting on-site vaccination events or conducting on-site COVID-19 testing; and
►prepare for receiving and processing religious and medical exemption requests and train front-line managers on how to identify and handle such requests. Exemption requests should be treated as requests for reasonable accommodation under Title VII or the Americans with Disabilities Act. The EEOC advises that an employer may deny a request for religious accommodation where the sincerity of the employees’ belief is questionable, as indicated by inconsistent past conduct, timing of the request or other factors. Employers considering denying religious requests must exercise extreme caution.
The ETS may be modified after the notice-and-comment period, or by legal challenge. Baker Sterchi attorneys will continue to monitor these developments, and will update this blog on a revolving basis with the most up-to-date information available.
Whether due to a government mandate or a self-imposed work rule, every day more employers are requiring employees to be vaccinated against Covid-19.
Employers are eager to attract vaccinated employees to open positions. Employers have analyzed the costs they may save by hiring vaccinated workers. Vaccinated employees are less likely to contract Covid-19 or suffer serious health consequences from the virus, and they are therefore less likely to miss time from work. Employers will also save time and administrative costs associated with processing accommodation requests, paying for testing, or providing time off to employees awaiting tests or vaccines. Employers with government contracts are already required to ensure their workers are vaccinated. For employers with 100 or more employees, new OSHA rules will require their entire work force to be vaccinated against Covid-19 as well, by January 4th. (Alternatively, an employee may undergo weekly COVID testing.)
Between now and then, vaccinated employees will be in high demand. Some job applicants, sensing employers’ eagerness for vaccinated employees, have begun including their vaccine status on resumes, job applications, and social media in order to stand out from the crowd. However, regardless of how attractive vaccinated employees may be, consideration of a job applicant’s vaccine status in hiring decisions may create pitfalls for employers.
Before trying to cut through the red tape of employee vaccinations, employers should be aware that federal and state vaccine mandates require employers to carefully evaluate employee requests for medical or religious accommodations. When an applicant does not list his vaccine status, an employer cannot and should not try to guess why that is. It may be that the applicant has a disability or religious belief that prevents him from being vaccinated. Consideration of vaccine status in hiring decisions may run afoul of the Americans with Disabilities Act or religious protections under Title VII.
The Americans with Disabilities Act prohibits discrimination against a qualified individual on the basis of disability, including “using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.” 42 U.S.C. § 12112(b).
Persons with certain disabilities may not be able to be vaccinated. Thus, they would tend to be screened out or disfavored when employers consider vaccine status in hiring decisions. For example, two job applicants are considered for a position. One lists her vaccine status on her resume and the other does not. The hiring manager may want to hire the vaccinated worker because he does not want to run the risk of the “headache” of dealing with weekly testing or other accommodation. But if the applicant has not been vaccinated due to a disability, she may have a claim for disparate treatment.
Furthermore, disparate impact claims are also cognizable under the ADA. To state a claim, a plaintiff must show a “facially-neutral” policy or practice, a statistically significant disparity, and a causal connection. Consideration of applicants’ vaccine status probably does not facially discriminate against people with disabilities. However, giving a preference to people who have included their vaccine status could cause people with disabilities that prevent vaccination to be disfavored in the hiring process. If qualified individuals with a disability apply and are rejected at statistically significant rates because of consideration of vaccine status, they may be able to state a claim that the hiring process violates the ADA.
The ADA also contains specific provisions for when employers may inquire about medical information. Generally, medical information should not be obtained by the employer until after a conditional job offer is made. Then medical information may be obtained 1) to begin the reasonable accommodation interactive process; or 2) when medical information is obtained from all applicants. Therefore, employers should avoid obtaining or receiving medical information from applicants until after a conditional offer is made.
Government vaccine mandates also require accommodation of people whose sincerely held religious beliefs prevent vaccination. Title VII recognizes both disparate treatment and disparate impact claims. The EEOC has tended to interpret “sincerely held religious beliefs” broadly. Courts have become increasingly willing to evaluate whether a religious belief is sincerely held. However, for employers this is a minefield and should generally be avoided. Inquiries into whether a belief is “sincerely held” often devolve into claims of harassment.
An individual who has not been vaccinated, but is otherwise qualified for the position, can often be reasonably accommodated under the ADA or Title VII. Experience over the last two years has shown that unvaccinated employees can be reasonably accommodated. Reasonable accommodations may include weekly testing (as in the newly issued OSHA ETS), mask requirements, social distancing, installing plexiglass barriers, modified work schedules, or remote work.
Under the new OSHA standard and prior federal mandates for government contractors, by early 2022 most employees will be required to be vaccinated or submit weekly negative Covid-19 tests. But this does not relieve employers of the duty to accommodate disabilities or religious beliefs.
In order to avoid discrimination claims, employers should:
- Include in job postings whether compliance with the OSHA ETS or other federal or state mandate is a job requirement, subject to applicable legal exemptions.
- Include in job postings that applicants should not include their vaccination status on resumes or job applications and that vaccination status will not be considered in hiring decisions.
- A blind application process – where photographs, demographic, and other personal data is redacted – is often the best way to remove bias from hiring decisions. If an employee offers vaccination information, it should be redacted.
- Wait until after a conditional offer is made to inquire into accommodations for disabilities or religious beliefs.
- Always store medical information in a separate file and treat it as confidential.
The Missouri Court of Appeals recently affirmed a trial court’s holding that a mere “Acknowledgement of Receipt,” attached to an Alternative Dispute Resolution Policy given to the employee upon hire, does not constitute an “offer” that can bind the employee to arbitrate future employment claims.
In Trunnel v. Missouri Higher Education Loan Authority, the Court of Appeals reasoned that MOHELA’s ADR Policy did not create an agreement to arbitrate because MOHELA never extended an offer to be bound by the arbitration process that could be accepted by the employee. When MOHELA hired Trunnel, Trunnel was given two documents, one titled “MOHELA Policy Regarding Mandatory Alternative Dispute Resolution/ADR Process” (“ADR Policy”) and the other a one-page document titled “Important Acknowledgement of Receipt of MOHELA Mandatory Policy on Dispute Resolution/ADR Process”). Trunnel purportedly signed the Acknowledgment of Receipt, but not the ADR Process document itself.
In pertinent part, the “Acknowledgment of Receipt” stated that employees “are bound by this Policy even if they do not sign this Acknowledgement form.” At the bottom of the form, the signature line states “I ACKNOWLEDGE RECEIPT OF THE MANDATORY ALTERNATIVE DISPUTE RESOLUTION/ADR PROCESS POLICY.” Trunnel subsequently sued for constructive discharge based on race, sex, and disability and retaliation. MOHELA moved to compel arbitration.
The trial court relied on Jackson v. Higher Education Loan Authority of Missouri, 497 S.W.3d 283 (Mo. App. E.D. 2016) to deny MOHELA’s motion to compel arbitration. In Jackson, the district court examined the exact same policy at issue, and determined that the arbitration policy signed by employees of MOHELA did not constitute a valid offer that an employee could accept. Rather than presenting an offer that could be accepted or rejected, MOHELA merely published the policy to its employees and required a signature acknowledging receipt of the policy.
Following the reasoning of Jackson, the trial court further found that Trunnel merely acknowledged receipt of the published ADR Policy, which was not an offer, and therefore she did not agree to be bound by the terms of the ADR Policy. MOHELA’s one argument on appeal was that Jackson was wrongly decided. It argued that the Acknowledgment of Receipt document Trunnel signed contained clear language that a binding agreement was being offered. The Court of Appeals noted that it was persuaded by the Jackson decision and concluded the ADR Policy and Acknowledgement of Receipt documents were merely a publication to employee, as there was no consequence for the failure to sign and nothing was presented to the employee for her acceptance. Further, while not dispositive, prominent use of the word “policy” was but one factor relied on by the Jackson Court to reach their conclusion, and in Trunnel MOHELA’s use of the word “policy” in lieu of “agreement” or “contract” again undermined its arguments that it constituted a contract.
Additionally, the Acknowledgement of Receipt form contained no explicit language manifesting an employee’s understanding that they were entering into, and bound by, the ADR Policy. The acknowledgment form simply required the employee to confirm they received a copy of the process itself, not that they assented to the terms therein. The Court discussed the Eighth Circuit case Shockley v. PrimeLending (analyzed in our 2019 Blog post: Arbitration Agreements 101: they require - you guessed it - agreement.), and found that “an acknowledgement of a review of offered terms alone does not evince an intent to accept those terms.”
Finally, MOHELA attempted to assert that an offer and acceptance existed with an affidavit from MOHELA’s Assistant Director of Human Resources, stating that Trunnel’s employment was contingent on signing the Acknowledgement. But the Court afforded little weight to the Affidavit, which contradicted the plain language of the Acknowledgement of Receipt, reasoning that if a signature on the Acknowledgement of Receipt was a condition of employment, there was no need to advise employees that their failure to sign would have no bearing on the applicability of the ADR process.
The decision in Trunnel provides important guidance to employers drafting Arbitration Agreements. First, the employee’s signature page must clearly state the employee’s intention to be bound by the terms of the actual agreement they are signing, rather than just acknowledging receipt of a company policy.
Second, employee handbooks generally do not create contractual rights. Arbitration agreements should be executed separately from employee handbooks, lest an employer unwarily create contractual rights it did not intend. Acknowledgement of receipt on an employee handbook will almost never be sufficient to bind an employee to an arbitration provision contained therein.
Third, while the Courts have regularly discussed adequate consideration in arbitration agreements (See Promises, Promises in Arbitration of Employment Disputes and Missouri Court of Appeals holds an employer may not reserve the right to litigate claims against an employee in court while simultaneously restricting the employee to arbitrate her employment claims.), employers must remember that an arbitration agreement has to contain each element of a contract including an offer, acceptance, a meeting of the minds, and consideration.
Fourth, the Agreement must make it clear to the employee that the employment relationship (or continuation of employment) is contingent upon signing the Agreement. In addition to not constituting an offer or acceptance, a promise is also illusory where signing or not signing the document is of no legal effect.
To avoid the pitfalls MOHELA encountered in Jackson and Trunnel, ensure that the signature page and all related documents clearly indicate that the employee agrees to be bound by the provisions of the arbitration agreement. As always, employers who may be considering modifying their arbitration agreements should pay close attention to recent cases discussing the limits of an employer’s right to do so. (See The Eastern District of Missouri continues the trend of invalidating employee-employer arbitration agreements).
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Baker Sterchi's Employment & Labor Law Blog examines topics and developments of interest to employers, Human Resources professionals, and others with an interest in recent legal developments concerning the workplace. This blog is focused on Missouri, Illinois and Kansas law, and on major developments under federal law, and at the EEOC and NLRB. Learn more about the editor, David M. Eisenberg, and our Employment & Labor practice.
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