However, in light of the numerous legal challenges and the uncertainties caused by the conflicting decisions in federal court, OSHA has stated that it will exercise its “enforcement discretion” to give employers some additional time to comply with deadlines published in the original ETS.  OSHA states that it will not issue any citations for non-compliance with ETS requirements before January 10, 2022, and will not issue citations before February 9, 2022 for failing to enforce the testing requirements—so long as employers are using good faith efforts to comply.

The challengers to the ETS have filed a petition in the United States Supreme Court to block the ETS.  However, unless the United States Supreme Court intervenes, the ETS is in effect and covered employers must be a position to comply with the new January 10 and February 9 enforcement deadlines.

So, is the ETS the law or not?

The “legal” answer is that as of today, yes.  But stay tuned.

Here is what has happened:  On November 5, 2021, OSHA issued the ETS, citing the “grave danger” posed by the virus to unvaccinated employees in the workplace.  Among other things, the ETS requires that covered employers must implement and enforce a policy that mandates that employees be fully vaccinated against COVID-19 by January 4, 2022 or to submit to weekly COVID-19 testing and wear a mask.  The ETS stated that it was to take effect immediately, i.e., when it was issued on November 5, 2021.  (See Womble Bond Dickinson’s original Alert on the ETS here.)

However, numerous legal challenges to the ETS were filed in federal courts across the country on the same day it was issued.  The challengers in the legal cases asserted, among other things, that the ETS is not valid because OSHA did not have the authority to issue the ETS and that it is unconstitutional.  In one of those challenges, the U.S. Court of Appeals for the Fifth Circuit issued a nationwide, temporary “stay” on November 6, which is a court order preventing the ETS from going into effect until the challenge is resolved in court.  The Fifth Circuit found there was "cause to believe there are grave statutory and constitutional issues" with the vaccine mandate rule.  The Fifth Circuit subsequently issued a full opinion extending the stay, ruling that the challengers were likely to succeed on the merits because, among a number of other reasons, that the ETS was unconstitutional and that OSHA exceed its authority in issuing it. 

Because there were challenges filed in multiple federal courts, all of those cases were consolidated into one appeal before the U.S. Court of Appeals for the Sixth Circuit.  OSHA requested that Sixth Circuit lift the stay that had been entered by the Fifth Circuit, and allow the ETS to go into effect.  

In a decision issued on December 17, 2021, the Sixth Circuit found in favor of OSHA and issued an order that lifted the prior stay, and allowed the ETS to go into effect.  The decision was a split decision, with two of the three judges finding in favor of OSHA.  Among other reasons for lifting the stay, the Sixth Circuit majority found that OSHA had authority to issue the ETS, and that OSHA had demonstrated a sound basis to issue the ETS to address the “grave danger” posed by COVID-19. 

The challengers have now filed emergency petitions in the United States Supreme Court, again asking that the ETS by stayed.  As of today, the Supreme Court has not ruled on those petitions.  We cannot predict how the Supreme Court might rule, but note that the Supreme Court has declined to stop other vaccine mandates imposed by state governments.  What is clear is that absent action by the Supreme Court or a final decision on the merits, the ETS remains in effect.

ETS Requirements and New Deadlines

The ETS imposes a significant number of new documentation, reporting, and paid leave rules on employers while the ETS remains in effect.  The following is a summary of employers’ key obligations. Under the ETS, the original deadline was December 5, 2021 for complying will all aspects of the ETS except for the actual implementation of the “vaccination or testing” policy, which was to take effect on January 4, 2022.  Due to the extenuating circumstances of the legal challenges, OSHA is giving employers additional time to comply without facing citations or penalties.

Employers must comply with the following ETS provisions no later than January 10, 2022:

• Develop a written policy mandating that employees either be fully vaccinated, or be subject to weekly COVID-19 testing and wear a mask at work, with few exceptions. 
• Determine the vaccination status of all workers by obtaining acceptable documentation of proof of vaccination (e.g., a vaccination card), and maintain a roster of the vaccination status of all employees. 
• Fully remote workers, employees who work exclusively outside, and workers who not work in a location where others are present, do not have to be covered under the “vaccination or testing” policy.
• Provide up to 4 hours of paid time for employees to receive the vaccination, and provide “reasonable” paid sick leave to recover from any side effects from the vaccine.  (Employers may allow employees to use vacation or PTO for these purposes.)
• Exclude employees from the workplace immediately in the event of a positive COVID-19 test or diagnosis. 
• Provide employees with certain information, including what the ETS requires of employers, the company’s policy, information about vaccine safety and efficacy (through an OSHA-approved notice prepared by the CDC), and information about the criminal penalties for fraudulent statements and documentation.
• Report work-related deaths due to COVID-19 to OSHA within 8 hours, and work-related hospitalizations within 24 hours.  (This reporting requirement was first promulgated in OSHA guidance in 2020.)

Employers must comply with the following ETS provisions no later than February 9, 2022:

• Implement and begin enforcing the “vaccination or testing” policy.
• OSHA states that will exercise enforcement discretion on the February 9 deadline with respect to testing for employers who making “reasonable, good faith efforts” to comply.

OSHA is authorized to issue citations, and the penalties for noncompliance under the be severe: $13,653 per violation, and up to $136,532 for willful or repeated violations.

What About State Laws?

The federal government has not been the only government taking action to address COVID-19 testing and vaccination.  Many states have issued executive orders or enacted legislation that requires vaccination or testing for some employers (frequently in health care or long-term care).  In addition, a number of states, in direct response to the ETS, have issued executive orders or passed laws that limit the ability of employers within the state to mandate vaccination or require proof of vaccination.  While OSHA takes the position that any state law contrary to the ETS cannot be enforced under the legal doctrine of “preemption,” that issue has not been decided.  This places employers in states with conflicting laws in a very difficult position.  There are no one-size-fits-all answers to this problem, and employers should seek legal counsel in balancing those conflicting obligations until the question is ultimately resolved by the courts.

In addition, those states that have state administered OSHA plans must adopt the ETS or an equally effective regulation of their own.  Until that happens the ETS will not be effective in those states.  States that resist in adopting a plan run the risk of losing their state OSHA program.

Planning Ahead: What do businesses need to do to prepare?

Many employers, in order to be ready for this exact situation, were taking steps to be prepared to comply with the ETS.  For those employers which were not preparing, immediate action is now required (unless or until the Supreme Court intervenes).  Because these steps cannot not be done overnight, covered businesses need to take steps now in order to be prepared for the new deadlines—waiting and seeing what the Supreme Court may do is not a prudent course for most employers.

1. Determine if your company or state or local government employer is covered by the ETS.  Whether a company meets the 100-employee threshold is not always a straightforward analysis, such as when a group of separate but related companies are under common management, or in the franchise context.  In close cases, legal guidance is recommended before concluding the ETS does not apply.
2. Determine the vaccination status of your workforce.  In addition to the fact the ETS will require companies to maintain a roster of employees and their status, companies need time to get the required information/documentation from employees (which experience teaches can take some diligent effort by HR), and to understand what the practical considerations related to their policy will be, such as how many employees may need to be tested, who can work remotely, etc.
3. If weekly testing is going to be needed, begin planning on how to accomplish that testing.  For many employers, getting testing done properly and in a timely manner (whether onsite or offsite) has proven quite challenging during the pandemic.  When/if the ETS goes into effect, you can expect significant demand that may limit the ability of employers and employees to arrange for approved testing (the ETS has specific requirements on the types of tests that are acceptable, and requires that any over-the-counter test kit results be observed by the employer or a provider).
4. Prepare a compliant “vaccination or testing” policy.  OSHA offers a policy template, but a tailored and more streamlined version may be a better answer for many employers.  Your legal counsel should be consulted to ensure the policy meets all of the requirements of the ETS.
5. Prepare a communication strategy.  The ETS imposes a number of requirements on employers to provide employees with certain notices and information, including information about what the ETS requires, the company’s policy, information about vaccine safety and efficacy, and information about the criminal penalties for fraudulent statements and documentation.  In addition to the ETS requirements, there are also important employee relations considerations that employers may wish to address.  As you no doubt have seen, vaccine mandates are controversial and employees across the nation have been vocal, both for and against mandates.
6. Prepare to process and document requests for exemptions from the vaccine mandate (or develop that process if it is not in place already).  For employees who are required to be vaccinated under the ETS, the rule permits the employer to grant exemptions from vaccination to employees for whom a vaccine is medically contraindicated, for whom medical necessity requires a delay in vaccination, or those who are legally entitled to a reasonable accommodation under federal law because of a disability or sincerely held religious belief.  In order to do this compliantly and in a non-discriminatory manner, exemptions must be assessed on a case-by-case basis.  You should plan for how employees must request the exemption, what forms should be created to facilitate that process, what documentation is required to support the request, and who will review and decide whether the exemption should be granted.
7. Confirm procedures are in place to report work-related COVID-19 deaths and hospitalizations as required by the ETS, and to maintain the documentation required under the ETS.
8. Determine if state law or executive order conflicts with any ETS requirement for any work locations.  As noted above, this is a complex issue, and we suggest you seek labor and employment counsel to address compliance.