The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS), which was published in The Federal Register on November 5, 2021. (https://federalregister.gov/public-inspection/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard) The rule requires businesses with at least 100 employees countrywide to mandate that their employees get vaccinated against COVID-19, or wear a mask and test for COVID-19 at a minimum, on a weekly basis. The ETS is expected to cover about two-thirds of private sector employees, or more than 80 million workers, and only around two and a half percent of private sector employers, or 133,000 companies, according to the latest Bureau of Labor Statistics data. On November 6, 2021, the 5th U.S. Circuit Court of Appeals in New Orleans issued a stay temporarily blocking the OSHA ETS.
On December 17, 2021, a little over a month after the 5th U.S. Circuit Court of Appeals issued the stay temporarily blocking the OSHA ETS, the 6th U.S. Circuit Court of Appeals lifted the stay on the federal government’s rule in a 2-1 decision. The Department of Justice (DOJ) requested that the 6th U.S. Circuit Court of Appeals reinstate the ETS and stated, “Delaying this standard would endanger many thousands of people and would likely cost many lives per day”, according to DOJ documents filed with the Court. The decision, authored by Judge Jane Stranch of the 6th U.S. Circuit Court of Appeals, concluded that the ETS likely passes “constitutional and statutory muster”. She also stated, “OSHA relied on public health data to support its observations that workplaces have a heightened risk of exposure to the dangers of COVID-19 transmission. Further, the 6th U.S. Circuit Court of Appeals noted that OSHA has satisfactorily “demonstrated the pervasive danger that COVID-19 poses to worked, unvaccinated workers in particular, in their workplaces.” Judge Julia Gibbons also joined this opinion and also included a short concurrence noting, “Reasonable minds may disagree on OSHA’s approach to the pandemic, but we do not substitute our judgment for that of OSHA, which has been tasked by Congress with policy-making responsibilities.” Judge Joan Larsen dissented in response to the denial of an “en banc” session, which would have required all judges of the 6th U.S. Circuit Court of Appeals to hear the case. Instead, the case was heard by the aforementioned three-judge panel. *For reference, less than 1% of requests for “en banc” sessions are ever granted in the 6th U.S. Circuit Court of Appeals. Law experts consider it a “legal hole-in-one”.
The 6th U.S. Circuit Court of Appeals rejected all claims by petitioners that stated mandatory vaccination or testing requirements impose substantial costs on businesses and risk further staffing shortages. These rejections were due, in part, to OSHA’s robust economic analyses that were conducted prior to issuing the ETS. The 6th U.S. Circuit Court of Appeals felt that OSHA’s analyses demonstrated the feasibility of implementing the standard and stated that concerns to the contrary are “entirely speculative”.
Shortly after the stay was lifted, state attorneys general who originally opposed the ETS immediately filed appeals with the Supreme Court. Emergency appeals are reviewed by the Supreme Court justice who is assigned to that circuit, which, in the 6th U.S. Circuit Court of Appeals’ case is Justice Brett Kavanaugh. Justice Kavanaugh has several options. He has the authority to grant the petitioners’ applications and stay the ETS pending a review of the entire Court, or, given OSHA’s decision to delay compliance dates, he could refer the applications to the full Court for a decision. Justice Kavanaugh could also take no action on the applications pending review of the full Court.
Now that the stay has been lifted, what are employers required to do? As a result of the month-long delay due to the stay, the initial deadlines for compliance with the original ETS have already passed. In a news release, the Department of Labor (DOL) issued a revised date for employers to come into compliance and stated, “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.” As of February 9, 2022, covered employers must ensure that employees who are not fully vaccinated are tested for COVID-19 at least once every seven-days (if in the workplace at least once per week), or within seven-days before returning to work if the employee was away from the workplace for a week or longer.
While the DOL’s news release allows employers extra time to implement a vaccine-or-test policy, time is of the essence. Between now and January 10, there are two major holidays in which many employees have likely already scheduled time off. Employers must be diligent in developing and clearly communicating their policy, defining how to go about determining an employee’s vaccination status, developing secure recordkeeping practices as an employee’s vaccination status is a medical record, and preparing for testing procedures and scheduling issues that employers are likely to face in the coming new year.
For additional information about the ETS, OSHA has published a Summary and Fact Sheet available at https://www.osha.gov/coronavirus/ets2 which addresses the various components of the ETS. New Focus HR has covered the original details of OSHA’s ETS in a previous article which is available at https://newfocushr.com/2021/11/12/osha-issues-covid-19-workplace-vaccine-mandate-or-weekly-testing/. Covered employers may also contact a Consultant at New Focus HR, LLC for additional information regarding OSHAs ETS at www.newfocushr.com .
Written by: Patrick McKenna, SHRM-CP