By Joseph S. Brown, Esq.
As you have probably heard by now, on November 4, 2021, the U.S. Occupational Safety and Health Administration (“OSHA”) issued a new Emergency Temporary Standard (“ETS”) “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace.”
This article provides an overview of the basics of the ETS, an update on legal challenges to the rule, and what employers can do now to prepare.
What is the ETS?
The ETS, which you can read more about here, requires private employers with more than 100 employees to either: (1) mandate covered employees be fully vaccinated against COVID-19 (with exemptions for disabilities and sincerely held religious beliefs); or (2) require covered employees that are not fully vaccinated to test for COVID-19 at least weekly and wear a face covering.
Here are some of the other basics for covered employers:
- Written Policies: must establish, implement, and enforce a written policy on vaccines, testing, and face coverings.
- Paid Time Off: must provide paid time off to employees to obtain the vaccine and reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination series dose to each employee for each dose.
- Recordkeeping: must obtain and maintain records and roster of employee vaccination status
- Notice Requirements: must comply with certain notice requirements when there is a positive COVID-19 case and reporting to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.
- Testing: The ETS allows employers to defer the cost to employees, however, OSHA warns that shifting the cost to the employee may be prohibited by state law requirements. The testing option also requires mask wearing.
For more information, employers should review OSHA’s website for answers to Frequently Asked Questions about the ETA
What is the timeline for compliance?
The ETS takes effect on November 5, 2021. Enforcement begins December 6, 2021 for all portions of the ETS other than the testing and vaccination compliance date, which starts January 4, 2022.The ETS can only remain in place for six months. Undoubtedly, we will be writing on this again as to the next steps after the ETS expires.
What are the penalties for non-compliance?
Covered employers could face OSHA citations and penalties of up to $13,653 per violation, and additional citations or penalties as determined by OSHA or state OSHA for willful or egregious failures to comply. In addition, covered employers may face potential exposure for individual whistleblower, retaliation, negligence and other claims potentially asserted by employees alleging a failure to follow the ETS.
What legal challenges are expected?
Last weekend, the United States Circuit Court of Appeals for the Fifth Circuit issued a temporary injunction, “blocking” the OSHA ETS from taking effect. The Court noted “grave statutory and constitutional issues” with the ETS. Although this order only affects employers located in the Fifth Circuit (Texas, Louisiana, Mississippi), given how broadly the stay is worded, some commentators have suggested that it applies nationwide. The matter is now fully briefed, and we expect a decision coming soon from Fifth Circuit on whether it will keep the stay in place.
In addition to the Fifth Circuit, a number of other federal court lawsuits have been commenced to block the ETS from taking effect. As of the date of this article, eleven federal circuits now have petitions pending for review of the ETS. We expect to see a patchwork of various legal rulings with some decisions blocking enforcements on a temporary basis while others finding that the ETS was lawfully promulgated and should proceed to take effect. For now, we will have to wait and see if the cases get assigned to a multidistrict litigation panel (which could result in a one circuit court being randomly assigned to decide all of the cases) or the challenge to the ETS ultimately makes its way to the U.S. Supreme Court for the final say in the matter.
What should employers be doing now to prepare?
The first step is determining whether or not the ETS applies to your business. For example, does your business have 100 employees or will it be approaching the 100 employee threshold in the near future? If your business is covered, we recommend that employers prepare for the ETS as if it will take effect but wait to implement its measures until the final judicial outcome is certain. This process should include creating a task force that comprises of HR professionals, leadership, and legal, if applicable. In order to be prepared to comply with the ETS should it ultimately be upheld, employers are well advised to spend the upcoming weeks reviewing these regulations and drafting clear policies, safety programs, and communication plans as such documents will be difficult to develop overnight.
We are continually assessing COVID-19-related issues in the employment context. For guidance on these issues, or other labor and employment concerns, please contact any member of the Hurwitz & Fine, P.C.’s Labor & Employment team at 716-849-8900.
