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OSHA Emergency Temporary Standard Applicable to Employers with 100 or More Employees Headed for Judicial Review
By Dennis Collins on November 17, 2021 at 2:45 PM

On November 5, 2021, OSHA released a previously announced Emergency Temporary Standard (ETS) requiring employers with at least 100 employees to enact a policy requiring employees to be vaccinated against COVID‑19 or submit to weekly testing. Employers are required to have a policy in place by December 5, 2021, with enforcement of the ETS to begin on January 4, 2022.

On November 6, 2021, the Fifth Circuit Court of Appeals for the United States temporarily blocked the mandatory vaccine and testing requirements, citing “grave statutory and constitutional issues.” That ruling was reaffirmed on November 12, 2021, when the Fifth Circuit issued a nationwide preliminary injunction, suspending enforcement of the ETS. However, with multiple cases pending across the nation, the judicial panel on multidistrict litigation held a multi-circuit lottery, and the Sixth Circuit Court of Appeals, which is based in Cincinnati, Ohio, was selected to handle a consolidated appeal. It is unlikely, however, that the Sixth Circuit will have the final say on the fate of the ETS. We anticipate that the matter will ultimately be decided by the U.S. Supreme Court.

What should employers do now?

Given the timetable for employer action, coupled with the ever-evolving legal battles faced by the ETS, many employers are asking what companies should do under these circumstances. While hoping to avoid enforcement and penalties from OSHA, these same companies are concerned about losing members of the workforce to the mandate. While there remains a great deal of uncertainty surrounding the ETS, there are steps employers can take in the interim.

The primary step an employer can take is developing a policy that complies with the requirements of the ETS. Pursuant to the ETS, employers are required to implement such policies by December 5, 2021. While that deadline may be delayed due to legal challenges, there is no certainty that will happen. Accordingly, we recommend that employers develop their policy and have it ready for implementation pending further actions from the courts. A policy that complies with the ETS must, at a minimum, include the following:

  • Employer policy on vaccination: The ETS requires employers to develop, implement and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement and enforce a policy allowing employees who are not fully vaccinated to undergo weekly COVID-19 testing and wear a face coving at the workplace.
  • Determination of employee vaccination status: The ETS requires employers to determine the vaccination status of each employee, obtain an acceptable proof of vaccination, maintain records of each employee’s vaccination status and maintain a roster of each employee’s vaccination status.
  • Employer’s support for full vaccination: The ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and a reasonable time and paid sick leave to recover from side effects following each dose.
  • COVID-19 testing for employees who are not fully vaccinated: Unless an employer decides on a policy requiring mandatory vaccination, the ETS requires each employer to ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly. While the ETS does not require employers to pay for any costs associated with testing, an employer may be required under federal, state and local laws, regulations or collective bargaining agreements to pay.

Employers with employees subject to collective bargaining agreements are required to comply with the ETS.

If you have questions, please contact Dennis Collins or any member of our  Employment & Labor Practice Group.

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