Health+Benefits the December 2021 issue

OSHA Has Spoken, Now It’s Up to the Courts

The new employer COVID-19 vaccination/testing mandate raises questions.
By Scott Sinder, Ashelen Vicuña Posted on November 8, 2021

I also believe that employers should impose vaccination mandates on their workforces in large part to protect and support those who have chosen to be vaccinated.

On Nov. 4, the Occupational Safety and Health Administration (OSHA) issued the expected Emergency Temporary Standard (ETS) that requires employers who have more than 100 employees either to impose a COVID-19 vaccination requirement or to allow a testing alternative for those who are not vaccinated by Jan. 4, 2022.

Just two days later, the Fifth Circuit issued an order temporarily staying implementation and enforcement of the ETS, and less than a week after that it entered a more permanent order to the same effect. Challenges currently are pending in 11 of the 12 other federal circuits and all of the pending challenges (including the Fifth Circuit challenge) will be consolidated into a single circuit court review process that likely will culminate at some point in the U.S. Supreme Court resolving the matter.

The ETS does not apply to employees who telework, do not report to a workplace where other individuals (co-workers, customers, etc.) are present, or work exclusively outdoors.

The Fifth Circuit’s initial review highlights the issues with which these courts will have to grapple in deciding the ultimate fate of the OSHA regime. I am somewhat dismayed to admit that OSHA’s explanation of the need for the rule even left me questioning whether this mandate is within the scope of OSHA’s legislative authority and whether its decision not to apply the requirements to employers with fewer than 100 employees could be viewed by a court as undermining OSHA’s “grave danger” conclusion.

In order for OSHA to issue an ETS, it must first find that employees are exposed to a “grave danger” and that the ETS both is necessary to protect employees from that “grave danger” and is reasonable and appropriate to address it. Here, OSHA concluded that “unvaccinated employees face grave danger from exposure to COVID-19 in the workplace” and they “are becoming seriously ill and dying as a result…”

The focus of the “grave danger” inquiry on the danger to unvaccinated individuals is not surprising because, as OSHA repeatedly states, the evidence is compelling that vaccinated individuals have dramatically reduced risk from becoming seriously ill or dying from COVID. OSHA believes the rule is justified for the unvaccinated because “a simple measure, vaccination, can largely prevent these deaths and illnesses.” OSHA then goes on to repeatedly assert that its fundamental goal here is to encourage unvaccinated Americans to get vaccinated purportedly because it’s just better for them.

The Fifth Circuit seemed to be particularly troubled by this societal focus—that the primary objective is not really to protect workers from workplace exposures that their employers can control but from themselves. And, at bottom, that is going to be the core issue for the courts to resolve: is imposition of this societal measure within the proper purview of an agency charged with regulating workplace safety.

There are other issues with the rule. The decision not to apply the ETS to employers with fewer than 100 employees because of the ETS administrative and recordkeeping compliance burdens, for example, seems to fly in the face of the initial “grave danger” determination (couldn’t they just tailor those obligations for smaller employers?). And it leaves one third of the workforce without any of the “vaccine encouragement” OSHA concludes is necessary and appropriate for employees of larger employers. These factors led the Fifth Circuit to find that the rule was both over-inclusive (all workplaces deemed as imposing “grave dangers”) and under-inclusive (excluding all employers with fewer than 100 employees).

The Fifth Circuit seemed to be particularly troubled by this societal focus—that the primary objective is not really to protect workers from workplace exposures that their employers can control but from themselves.

The discussion of what counts as a single “employer” is more like loose guidance than a hard applicable rule, which will raise more questions than it answers. For example, affiliated entities that “handle safety matters as one company” will be treated as a single “employer”; staffing agency employees are subject to the staffing agency’s ETS rules and not the host employer’s.

It is clear that, regardless of the outcome of the legal challenges, employers are legally permitted to impose the vaccination mandates (except in Texas and Florida), and they can require employees to bear the testing cost if a testing alternative is allowed (arguably even in Texas and Florida).

If it stands, the ETS requires the following:

Mandatory Vaccination Policy. Employers with 100 or more employees must implement a policy that either:

  • Mandates their employees to be fully vaccinated (with exemptions for medical reasons, a disability, or sincerely held religious beliefs) or
  • Provides employees a choice to be fully vaccinated or submit to weekly testing and wear a face covering indoors.

An employee is considered “fully vaccinated” two weeks after completing primary vaccination (i.e., Johnson & Johnson) or two weeks after receiving the second dose of a two-dose regimen (i.e., Pfizer, Moderna).

The ETS does not apply to employees who telework, do not report to a workplace where other individuals (co-workers, customers, etc.) are present, or work exclusively outdoors. Federal contractors and employees working in healthcare settings are also excluded, as they are now subject to separate vaccination mandate regimes.

Testing. If an employer chooses to allow testing as an option, an employee who comes to work at least once every seven days must be tested at least once every seven days and provide the test results to the employer within seven days of when the employee last provided a test result.

Employees who do not come to work for more than seven days must be tested within seven days prior to returning to work and provide the test result upon their return. Notably, employers are not required to pay for any costs associated with testing, though there may be local laws, collective bargaining, and/or negotiated agreements requiring them to do so.

Vaccination Support for Employees. Employers must provide up to four hours of paid time, including travel time, at employees’ regular rate of pay for purposes of receiving each dose, as well as provide a reasonable amount of time and paid sick leave for employees to recover from any side effects. Employers can require employees to use accrued sick leave time for the recovery period.

Employer Verification, Disclosures and Recordkeeping. Employers are required to issue their vaccination policies in writing and to notify all employees as well as provide them with the CDC’s vaccine information document. The ETS provides a few options for employers to verify a worker’s vaccination status, including a vaccination card, medical record or other official documentation. In the event an employee cannot provide this proof, an employer may accept a signed attestation by the employee that conforms with specific language contained in the ETS certifying that the employee has been vaccinated.

Employers must require employees to promptly notify the employer of a positive test or diagnosis, regardless of vaccination status or testing requirements, and must immediately remove the employee from the workplace. Employees can return to work upon providing a negative test, meeting the CDC’s return-to-work guidance, or receiving a recommendation to return to work from a healthcare provider. Employers must also report to OSHA (1) each work-related COVID-19 death within eight hours of learning about the death and (2) each work-related COVID-19 inpatient hospitalization within 24 hours of learning about the hospitalization.

Lastly, employers must maintain records and a roster of each employee’s status as long as the ETS remains effective.

Preemption of State and Local Laws. The ETS makes clear that any state and local laws that are “inconsistent” with this rule are preempted, specifically emphasizing any laws that ban or limit an employer from requiring vaccination or testing. Even though the preemption assertions are broad, it is very unclear how they can apply to employers with fewer than 100 employees given that those employers are not currently covered by the ETS at all.

OSHA has spoken. Now it is up to the courts.

Scott Sinder Chief Legal Officer, The Council; Partner, Steptoe Read More
Ashelen Vicuña Senior Associate, Government Affairs and Public Policy Practice Group, Steptoe & Johnson Read More

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