By Joseph S. Brown, Esq.
In early November, we issued an article on how the U.S. Occupational Safety and Health Administration (“OSHA”) issued a summary of the 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.”
At that time, we noted that 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. Since that time, there have been a dizzying array of legal challenges to the ETS. More recently, December 17, 2021, when the Sixth Circuit Court of Appeals—the court which the multidistrict litigation panel assigned to hear all challenges—granted OSHA’s motion to dissolve the stay of ETS. That order determined that the petitioners challenging the ETS did not have a strong likelihood of success on the merits of their claims and that they would not suffer irreparable harm if the stay is lifted.
Following the Sixth Circuit’s decision, OSHA updated its website with the following statement setting forth its enforcement activity plans and expectation that employers become compliant by January 10, 2022, except for testing requirements:
OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.
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.
The Sixth Circuit’s decision to lift the stay has already been appealed to the U.S. Supreme Court. The Supreme Court just announced that it is going to hold a special session for oral arguments on Friday, January 7, 2022 to consider emergency motions to stay the ETS. This will not be a full hearing on the merits of the ETS, but it is likely to provide a strong preview as to whether the ETS is likely to survive.
So what does this mean for New York private employers with one hundred or more employees?
In states like New York, where the federal government enforces the OSHA Act, the ETS is effective immediately. By January 10th, a covered business should establish a vaccination policy, provide employees with all information required by the ETS, determine the vaccination status of each employee and required unvaccinated employees to wear face coverings, provide paid leave for employees to get vaccinated (already required by NY law), and establish a reporting policy and recordkeeping policy for COVID-19 related records. The deadline for vaccines and weekly testing of employees is set to begin on February 9, 2022. It remains to be seen whether or not the U.S. Supreme Court will rule on the stay prior to January 10th deadline or whether OSHA will extend the deadlines again in light of this development with the Supreme Court.
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. For more information, employers should review OSHA’s website for answers to Frequently Asked Questions about the ETA and consult with employment counsel as needed.
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.