By: Laurie A. Thompson
Private employers with 100 or more employees should be aware that on December 17, 2021, the Sixth Circuit Court of Appeals lifted the stay imposed by the Fifth Circuit Court of Appeals on OSHA's Emergency Temporary Standard (ETS) for COVID-19 Vaccination and Testing in the workplace. Several interested parties applied to the U.S. Supreme Court for emergency review.
In an unusual move, the Supreme Court announced it will hold a special hearing on January 7, 2022, to consider arguments on both OSHA's Vaccination and Testing ETS as well as a regulation from the Centers for Medicare and Medicaid Services (CMS) requiring vaccines for health care workers. The U.S. Supreme Court has not issued a stay of OSHA's Vaccination and Testing ETS so at this point it is the law. The Supreme Court has repeatedly upheld state-implemented vaccine mandates in a variety of circumstances. However, the future of OSHA’s ETS and the federal contractor vaccine mandate will likely turn on whether Congress authorized the executive branch to institute these types of requirements.
The ETS requires covered employers to develop, implement and enforce a mandatory COVID vaccination policy unless they adopt a policy requiring employees to choose to either vaccinate or undergo regular COVID testing and wear a face covering at work. After the 6th Circuit’s ruling, OSHA stated that for those employers who are exercising reasonable good faith efforts at compliance it would delay issuing any citations for noncompliance until January 10, 2022. Prudent-covered employers should take steps to comply.
The ETS requires covered employers to do the following:
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee's vaccination status.
- Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow such employees to return to work until they meet the required criteria.
- Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
- Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
The ETS itself does not require employers to pay for testing; however, employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings.
OSHA'S Vaccination and Testing ETS preempts States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a Federally-approved State Plan. In particular, OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face-covering, or testing. OSHA's Vaccination and Testing ETS establishes minimum requirements for employers, but nothing in the ETS prevents employers from agreeing with their employees to implement additional measures, and this section does not displace collectively bargained agreements.
Fowler White's Labor & Employment Group is here to assist you with preparing effective and thorough vaccination and COVID-19-related policies, drafting and revising employee handbooks, compliance and documentation, and managing accommodation requests.
Contact us if you are a covered employer with questions about the details of OSHA'S Vaccination and Testing ETS and how to come into compliance.
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