OSHA Releases COVID-19 Vaccine Mandate: Steps Employers Can Take To Comply With New Rule - UPDATED

UPDATE (12/20): On December 17, 2021, the Sixth Circuit Court of Appeals reinstated OSHA’s vaccine and testing requirements for private businesses with more than 100 people. This ruling lifts the November injunction that temporarily stayed implementation of the OSHA rule. The Sixth Circuit did not address how its decision would impact the timing of the rule’s vaccination and testing requirements, which were originally set to go into effect December 6, 2021, and January 4, 2022, respectively. OSHA seems to have filled in that gap. The day after the Sixth Circuit’s decision, OSHA announced that it will not issue citations for noncompliance with the requirements before January 10, 2022, and for noncompliance with the standard’s testing requirements until February 9, 2022, provided the employer is exercising reasonable, good faith efforts to come into compliance with the standard. Therefore, while the ETS is now in effect, OSHA will not enforce its requirements until the dates noted above. Shortly after the foregoing actions by the Sixth Circuit and OSHA, multiple plaintiffs filed with the Supreme Court emergency applications to immediately stay the standard. It is unclear when the Court will rule on the applications and if it will do so before January 10, 2022. Thus, the legality of OSHA’s ETS still remains in question.

UPDATE (12/3): Legal challenges to OSHA’s ETS will be heard before the Sixth Circuit Court of Appeals. The Judicial Panel on Multidistrict Litigation selected the Sixth Circuit as part of a random selection where each court’s name was entered into a drum. Since the ETS’s enactment on November 5, 2021, 34 lawsuits have been filed in multiple federal appeals courts against the ETS triggering the lottery to consolidate the cases before one court. 

On November 12, 2021, the Fifth Circuit Court of Appeals issued a stay against the requirement and further instructed OSHA to take no steps to implement or enforce the ETS. OSHA will now issue its response to the Fifth Circuit’s order in the Sixth Circuit. Any decision reached by the Sixth Circuit will not likely be the final decision as the losing side may request a U.S. Supreme Court review. If the ETS withstands these legal challenges, the rule’s deadline, which includes a December 5, 2021 deadline for employers to identify which workers are vaccinated and a January 4, 2022 deadline for employees to be vaccinated, will remain.

UPDATE (11/8): The federal Fifth Circuit Court of Appeals has temporarily stayed implementation of the OSHA rule in response to a lawsuit challenging its legality. The Court will receive further briefing, and the scope and permanency of this stay are still in flux. We will continue to monitor and update. For now, employers should also monitor the litigation, take the steps to start planning for the rule’s implementation, but be aware that this rule is subject to litigation. 

The ETS requires all private employers with 100 or more employees to institute vaccination status recordkeeping policies, require their workforce to be fully vaccinated or to undergo weekly COVID-19 testing, and enforce mask-wearing for all unvaccinated employees. This ETS implements President Biden’s COVID-19 Action Plan announced on September 9, 2021 and focuses on ensuring workers’ protection against the coronavirus in the workplace.

The ETS applies to all private companies who employ 100 or more employees firm- or corporate-wide. Part-time employees do count towards the company total, but independent contractors do not. Under the ETS, covered employers must:

1. Adopt mandatory vaccination policies for the workplace, with an exception for employers that instead adopt a policy allowing employees to elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.
2. Determine the vaccination status of each employee by obtaining acceptable proof of vaccination status and maintain records of each employee’s vaccination status.
3. Require employees to provide prompt notice if they test positive for COVID-19 or receive a COVID-19 diagnosis.
4. Remove any employee that tests positive for COVID-19 or receives a COVID-19 diagnosis from the workplace, regardless of vaccination status.
5. Ensure that each employee, who is not fully vaccinated, is tested for COVID-19 at least weekly or within 7 days before returning to work if the employee is away from the workplace for a week or longer. Employers are not required to pay for COVID-19 testing, nor are employers required to provide leave for testing.
6. Ensure that each employee, who is not fully vaccinated, wears a face covering when indoors or when occupying a vehicle with another person for work purposes. Employers are not required to pay for face coverings.
7. Provide employees with paid time-off, up to four hours, for the time it takes to get vaccinated, as well as provide sick leave for workers to recover from any side-effects of the vaccine. Employers are required to provide this leave starting December 5, 2021.

The ETS excludes some categories of employees from its requirements. First, remote workers, those who work from their homes or from workplaces where no other people are present and who do not come into contact with others for work purposes, are exempt from the ETS’s requirements. Second, employees who work exclusively outdoors are also exempt. Third, healthcare employees are subject to a separate Healthcare ETS.

Employers subject to the ETS have until December 5, 2021 to institute the masking and recordkeeping requirements, among others. By January 4, 2022, employers must either ensure all their employees are fully vaccinated or submit to weekly testing and mandatory masking. As a result, employers should begin to implement practices and policies to ensure they comply with the ETS as soon as possible. Employers can execute the following action steps to put themselves in the best position for compliance.

• Designate an individual or individuals to be in charge of tracking and monitoring employees’ compliance with COVID-19 vaccination status or testing.
• Adopt procedures for determining employees’ vaccination status. This may include implementing a system asking employees whether they have been vaccinated and maintaining confidential records of employees’ vaccination status.
• Determine whether the company will adopt a mandatory vaccination policy or allow unvaccinated employees to be tested weekly. When making this determination, companies should consider the burden of collecting and tracking weekly test results from employees.
• Determine how to handle any accommodation requests. Employers implementing a vaccine mandate should also develop a policy regarding reasonable accommodations to address any religious or disability issues. Employers should also be prepared for any accommodation requests related to weekly testing requirements. Such an accommodation process should be addressed separately from exemptions from the vaccine mandate.
• Implement a plan to track test results. While the ETS does not require employers to pay for testing, employers should still review all applicable federal, state and local employment laws, as well as collective bargaining agreements to determine if employers must pay for testing.
• Develop a process for removing employees who have tested positive for COVID-19 from the workplace and ensure that such employees do not return to the workplace until they meet the return-to-work criteria.
• Plan for the possibility that employees may refuse to comply with the ETS’s requirements. Employers should develop an appropriate response for such instances.
• Communicate any changes or requirements of the workplace’s COVID-19 policy to your employees.

Over, federal, state and local guidance on this issue is complex, novel and changing rapidly. If you have any questions about this or any other workplace issue, please contact one of Klehr Harrison’s labor and employment attorneys.

Co-authors Jonathan Krause, partner and Stephanie Grey, associate are members of the labor and employment practice group at Klehr Harrison.