On Friday, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the stay previously blocking the Emergency Temporary Standard (“ETS”) issued by the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) requiring all employers with at least 100 employees to ensure their employees are fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA announced this week that it has implemented the ETS and expects covered employers to immediately begin taking steps to comply with its requirements.
The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.
The majority of the requirements of the ETS were scheduled to effect on December 6, 2021 (thirty days after the ETS was published in the Federal Register). The ETS further required covered employers to implement the weekly testing requirement for all employees who are not fully vaccinated by January 4, 2022. However, OSHA announced this week that it will exercise “enforcement discretion” with respect to the compliance dates.
On Thursday, September 9, 2021, President Joseph Biden announced the issuance of sweeping COVID-19 mandates that will apply to millions of employees. The announcement was part of the Biden administration’s “Path Out of the Pandemic”, a comprehensive national strategy to combat COVID-19.
As part of the Path Out of the Pandemic strategy, President Biden announced that OSHA was developing a rule requiring all employers with at least 100 employees to ensure their employees are fully vaccinated against COVID-19 or require unvaccinated workers to require any workers who remain unvaccinated to produce a negative COVID-19 test result on at least a weekly basis before coming to work.
On November 4, 2021, OSHA issued the ETS outlining the COVID-19 vaccination and testing requirements for covered employers – those companies with 100 or more employees. Several states – including Georgia – filed lawsuits challenging the legality of the ETS. On November 5, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an order blocking implementation of the ETS pending the outcome of the litigation. The various legal challenges were consolidated and randomly assigned by lottery to be heard by the U.S. Court of Appeals for the Sixth Circuit.
Due to the stay issued by the Fifth Circuit Court of Appeals, OSHA suspended implementation of the ETS. However, on December 17, 2021, a divided three-judge panel of the Sixth Circuit Court of Appeals issued an order lifting the stay. The majority (2-1) decision found that the legal challenges to the ETS are not likely to be successful because, among things:
- OSHA has the statutory authority to: (a) issue standards that protect workers against infectious diseases and viruses that present a significant risk in the workplace, even if exposure to such viruses may exist outside the workplace; and (b) require medical examinations and vaccinations as tools to protect the health and safety or workers.
- OSHA was justified in issuing the ETS because: (a) COVID-19 currently presents a state of emergency that can be ameliorated by agency action; and (b) OSHA has sufficiently demonstrated the pervasive and grave dangers that COVID-19 presents to workers – particularly unvaccinated workers – and the ETS is necessary to protect workers from that danger.
The order lifting the stay has been appealed to the U.S. Supreme Court. It remains to be seen how the Supreme Court rules on the question of whether the ETS should be allowed to take effect while the lower court is considering the legal challenges. We expect that the Supreme Court will act relatively quickly. However, given that the Sixth Circuit’s order found that the legal challenges to the ETS are not likely to succeed, we recommend that covered employers immediately prepare to meet the fast-approaching compliance dates, as penalties for non-compliance are severe – up to $14,000 per violation.
The COVID-19 Vaccination and Testing ETS applies to all companies with 100 or more employees. To determine applicability of the ETS, employers must include all employees across all of their U.S. workplaces, regardless of employees’ vaccination status or where they perform their work.
The ETS vaccination and testing requirements do not apply to the employees of covered employers who do not report to a workplace where other individuals, such as coworkers or customers are present, or while working from home.
This ETS does not apply to: (1) workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors; (2) settings where any employee provides healthcare services or healthcare support services when already subject to the requirements of the Healthcare ETS issued June 21, 2021; (3) workplaces of employers who have fewer than 100 employees in total; and (4) public employers in states without State Plans.
Covered employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
To satisfy this requirement, employees must show one of the following:
- the record of immunization from a health care provider or pharmacy;
- a copy of the U.S. COVID-19 Vaccination Record Card;
- a copy of medical records documenting the vaccination;
- a copy of immunization records from a public health, state, or tribal immunization information system; or
- a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
To be acceptable as proof of vaccination, any documentation should generally include the employee’s name, type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
Employers may obtain a physical copy of a vaccination record or they may allow employees to provide a digital copy of acceptable records, including, for example, a digital photograph, scanned image, or PDF of such a record that clearly and legibly displays the necessary vaccination information. However, to be in compliance, the employer must ensure they are able to maintain a record of each employee’s vaccination status. Therefore, the record maintenance requirements cannot be fulfilled by an employee merely showing the employer their vaccination status. Employers must retain a physical or digital copy of the documentation.
Paid Leave Requirements
The ETS provides that covered employers must provide their employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose. Employers are prohibited from requiring employees to use paid time off to receive the primary vaccination doses.
Employers are further required to provide employees reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose. If an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects experienced following a primary vaccination dose. Additionally, if an employer does not specify between different types of leave (i.e., employees are granted only one type of leave), the employer may require employees to use that leave when recovering from vaccination side effects. If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects.
Employers cannot require employees to use advanced sick leave to cover reasonable time needed to recover from vaccination side effects. An employer may not require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects. In other words, the employer cannot require an employee to go into the negative for paid sick leave if the employee does not have accrued paid sick leave when they need to recover from side effects experienced following a primary vaccination dose.
Employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be reasonable. Because some people have no side effects, and most side effects, if experienced, go away in a few days, OSHA has stated that it presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with the paid leave requirement.
Testing and Face Covering Requirements for Unvaccinated Employees
Covered employers must require employees who are not fully vaccinated to be tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
Employees who are not able to receive a COVID-19 vaccination due to a disability or sincerely-held religious belief are not exempt from the testing requirement and must comply as any other employee who has not been fully vaccinated.
The ETS requires employers to maintain a record of each test result required to be provided by each employee pursuant to the ETS or obtained during tests conducted by the employer.
The ETS requires covered employers to require that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
Employees must promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19. Employers must immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return to work criteria are met.
When an employee has received a positive COVID-19 test, or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer must not require that employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis, due to the high likelihood of false positive results that do not indicate active infection but are rather a reflection of past infection. However, when the employee returns to work, they must continue to wear a face covering.
Notifications to Employees
Covered employers are required to provide their employees with information about: (1) the requirements of the ETS and the workplace policies and procedures established to implement the ETS; (2) vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); (3) protections against retaliation and discrimination; and (4) the provisions of the Occupational Safety and Health Act that provide for criminal penalties for knowingly supplying false statements or documentation. Fact sheets related to OSH Act protections against retaliation and criminal penalties for knowingly supplying false statements or documentation are available on OSHA’s website.
As explained above, the private employer vaccine mandate has already encountered legal challenges, and the U.S. Supreme Court is currently considering whether the ETS should be stayed pending the outcome of those challenges. We will issue updates as they are announced by the Biden Administration and the courts.