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.