Earlier this week a Federal Court panel revived the Covid-19 emergency temporary standard (ETS). Now, litigation challenging the emergency shot-or-test mandate is making its way to the United States Supreme Court. However, that will not stop the quickly approaching Occupational Safety and Health Administration (“OSHA”) inspections of large employers for compliance with the rule and potential citations for non-compliance.
Recap of the mandate’s details:
ETS, which imposes mandatory vaccination, vaccination verification, mask, and testing requirements, applies to most “large employers” (i.e., employers with 100 or more employees). Large employers must create and enforce a vaccination policy and, for employees who are not fully vaccinated, a weekly testing and mask wearing policy. Employers cannot require vaccinations for employees who need disability-related accommodations or religious exemptions. The vaccination mandate does not apply to employees who (i) do not work at a location with other employees, (ii) work from home, or (iii) work outdoors at all times.
NOTE: Any exceptions to the vaccine requirement should be carefully documented.
ETS also requires large employers to establish a procedure to determine and record the vaccination status of each employee, and to provide at least four hours of paid leave for each vaccination dose and a reasonable amount of paid sick leave for recovery. At present, the mandatory vaccination requirement does not include boosters. Large employers must also develop procedures that enable employees to promptly report positive COVID test results and to self-quarantine as required.
OSHA had previously been prevented from implementing the Biden administration’s rule, which was initially set to be implemented on December 6. OSHA currently has the green light to begin enforcing the temporary standard. The agency is exercising enforcement discretion so long as employers are making reasonable, good faith efforts to come into compliance with the standard. With respect to all ETS requirements except the testing requirement, OSHA will not issue noncompliance citations prior to January 10, 2022. Citations will not be issued for noncompliance with ETS’s testing requirements prior to February 9, 2022.
In early 2022, however, the Supreme Court will rule on the enforceability of ETS. Because the Court will either uphold the standard or halt the rule, employers must remain both flexible and prepared for either outcome, as the mandate landscape continues to shift.
Important dates:
January 10, 2022 – OSHA will begin enforcing the ETS requirements, exclusive of the testing requirement.
February 9, 2022 – OSHA’s deadline for workers to be fully vaccinated or tested on a weekly basis.
Recommended Next Steps:
Employers should not be caught off guard and should prepare as if the rule is going to be upheld by the Supreme Court. Accordingly, the following steps should be taken:
- Communicate with your workers that in early 2022 they may be required to be inoculated or submit to weekly testing and mask-wearing. The notice must (i) be written so that it can be clearly understood by your employees, (ii) provide information about ETS and policies and procedures established to implement ETS; (iii) include the CDC notice “Key Things to Know About COVID-19 Vaccines” which can be found at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html; (iv) describe your workplace protections against retaliation and discrimination; and (v) describe the criminal penalties for knowingly supplying false statements and/or documentation.
- Draft compliant vaccination and testing policies.
- Maintain a copy of each employee’s COVID-19 vaccine documentation and any COVID-19 test results. To ensure privacy, employers must carefully maintain the vaccination and testing records.NOTE: An employee’s vaccination and testing records must be available to such employee and to any individual who has the employee’s written consent.
- Accurately track your workforce’s vaccination status. Employers must also be able, upon request, to provide to an employee or employee representative the aggregate number of fully vaccinated employees in the workplace and the total number of employees at that workplace.
- Provide four hours of paid leave for each vaccination and a reasonable amount of time to recover.
- Create procedures for employees to report positive COVID test results and self-quarantine as required.
If your organization has not yet implemented a vaccination policy, begin drafting one promptly. Employers that have already implemented vaccination and testing requirements should review their policies and procedures to ensure they are in compliance with ETS.
OSHA has indicated that ETS is a proposed rule and as a result some aspects of the rule may change. In an abundance of caution, small employers, even though they are not subject to ETS, might want to adopt ETS standards to limit potential risk.
Conclusion:
Our stance remains steadfast: be prepared, be flexible, be safe. If you have any questions about the mandate or need assistance in crafting your workplace vaccination policy, please reach out to Katherine Brustowicz, David Gabor, or Ginny Peabody of The Wagner Law Group’s Employment Law Team.