OSHA’s Large Employer Vaccine Mandate in Limbo Following Court Action: Ten Steps Employers Should Still Take Now

What happened?

On November 5, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) giving companies with at least 100 employees two choices: 1) require all employees except those with religious or medical accommodations to become fully vaccinated (which does not include receiving a booster shot) before January 4; or 2) require employees who are not fully vaccinated to begin wearing a face covering when indoors or when occupying a vehicle with another person for work purposes after December 5 and undergo weekly COVID-19 testing after January 4.[i] Through the ETS, OSHA intends to preempt any State or local requirements that ban or limit an employer’s authority to require vaccination, face-covering, or testing.

In response, over 25 states joined four circuit court petitions for review, attempting to overturn the ETS. A lottery will determine which circuit court is selected to hear the cases, consolidated into one action. Other states and organizations have a ten-day window from the issuance of the ETS to file a petition in other circuits so they can be included in the lottery.

On Saturday, the United States Court of Appeals for the Fifth Circuit issued a nationwide stay of the rule in response to a petition for review.

What is the impact of the court’s decision to stay the rule?
Since the lottery has not yet taken place, the case may be transferred to another circuit, which can continue or lift the stay. In the meantime, the Fifth Circuit case will continue. After briefing and arguments, the court will decide whether to extend the injunction. OSHA will almost certainly appeal any unfavorable ruling to the United States Supreme Court. Nonetheless, given the unknowns and quickly approaching ETS implementation deadlines, employers are advised not to wait for the legal battles to conclude before preparing for the ETS.

What should employers do now?

1. Determine if the new OSHA ETS applies to your company. The new rule covers employers if they employ at least 100 employees when the ETS is in effect, regardless of whether the employees are located at different worksites. All employees count toward the 100-employee threshold, including remote employees, employees who work exclusively outside, and part-time employees. Independent contractors and temporary workers employed through third-party staffing agencies do not count toward the threshold. Employers do not need to count volunteers when determining whether they meet the 100-employee threshold but may elect to impose a similar rule for volunteers.
   
   
2. The ETS carves out federal contractors from coverage under the ETS, as they are already required to be vaccinated or undergo regular COVID-19 testing as a result of a prior Executive Order.[ii] Likewise, other organizations employing health care workers are not covered by the ETS because they are covered by a previously issued ETS specific to healthcare workers.[iii]
   
   
3. Assess your workforce to determine which employees will be impacted by the rule. The percentage of an employer’s workforce that is covered by the ETS could impact an employer’s decision whether to mandate vaccines or require testing. OSHA has carved out two categories of employees who, although counted for purposes of determining whether the employer meets the 100-employee threshold, are not subject to the ETS requirements: (1) workers who do not report to a workplace where other individuals (employees or customers) are present or who telework from home; and (2) workers who perform their work exclusively outdoors. Employees who work part of the time in the office and the rest of the time elsewhere must follow the rule.
   
   
4. Prepare to collect vaccine information by reviewing and updating medical recordkeeping practices. The current level of vaccination in an employer’s workforce may impact whether the mandatory vaccination or weekly testing option is the best option for that employer and is the starting point for compliance with either option. As a result, employers should consider asking employees for their current vaccination status now, rather than waiting for a final court decision on the ETS. Even without the ETS, employers are permitted to collect this data under the employer’s own voluntarily established COVID-19 safety protocols, assuming the policy is applied consistently.
   
   Employee COVID-19 vaccination, testing, and related records must be maintained as confidential medical records separately from employees’ personnel files. The records must also be maintained and preserved while the ETS is in effect in a manner that can be made available for review by OSHA and upon an individual employee’s request for their information. In addition, union representatives may request information regarding the number of vaccinated and unvaccinated employees in the workplace, regardless of which policy option the employer has chosen.
   
   
5. Determine employee vaccination status. The ETS outlines the types of documents that constitute acceptable proof of vaccination status. Acceptable proof of vaccination status includes: (1) The record of immunization from a health care provider or pharmacy; (2) a copy of the COVID–19 Vaccination Record Card; (3) a copy of medical records documenting the vaccination; (4) a copy of immunization records from a public health, state, or tribal immunization information system; or  (5) a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). Also, a signed and dated employee attestation is acceptable when an employee cannot produce proof of vaccination if the employee attestation also acknowledges that providing false information regarding vaccination status may subject the employee to criminal penalties. Employers that have previously collected attestations prior to the effective date of the ETS do not need to re-verify or collect these attestations if they meet the ETS requirements.
   Proof of prior infection with COVID-19 is not a substitute for vaccination. This determination is based on research indicating that “a considerable number of individuals who were previously infected with [COVID-19] do not appear to have acquired effective immunity to the virus” and that “the level of protection afforded by infection-induced immunity appears to depend on the severity of individuals’ infections.”[iv]
   
   
6. Decide whether your organization will allow a testing option. OSHA has communicated its preference that employers mandate the vaccine. However, employers deciding not to implement a mandatory vaccine requirement will still comply with the ETS if they ensure that unvaccinated workers who report to a workplace where others are present are wearing masks and tested at least once a week for COVID– 19.[v] And, where employers do not adopt a mandatory vaccination policy, employers may also consider feasible alternative measures that would remove employees who remain unvaccinated from the scope of the ETS’s vaccination and testing requirements, such as by increasing the availability of remote work. Employers with unionized workforces need to carefully review their collective bargaining agreements and past practices to determine if they must negotiate with the union before choosing the option to implement. Employer policies that could result in discipline or discharge are mandatory subjects of bargaining.[vi]
   
   
7. Decide whether your organization will provide or cover the cost of testing. The ETS does not require employers to pay for or provide tests, but employers may be required to pay under collective bargaining agreements or local laws. Some state laws may obligate employers to pay for ancillary costs of testing, such as the cost of travel to the test, as a “business expense.” Nothing prohibits employers from voluntarily assuming the costs associated with testing. Although the ETS does not require employers to provide leave for testing, employers may be required to pay under collective bargaining agreements or local laws. Tests that are both self-administered and self-read are not acceptable unless they are observed by the employer or an authorized telehealth proctor.
   
   
8. Review leave and paid-time-off policies. The ETS requires employers to provide up to four hours of paid time off to get vaccinated starting December 5. This obligation applies regardless of whether the employer mandates the vaccine. It does not apply to booster shots, which the ETS does not cover, or if the employee obtains the vaccine outside of working hours. Likewise, employers must provide employees with a “reasonable amount” of paid sick leave to recover from vaccine side effects. The ETS allows employers to set a reasonable cap on this time but does not define “reasonable.” The paid leave may run concurrently with the employer’s existing paid leave programs, but the employer cannot require employees to use vacation time.
   
   
9. Update accommodation policies and practices. Remember that employees may still ask to forego the vaccine as a reasonable accommodation under the ADA or Title VII. The ADA requires employers to reasonably accommodate an employee’s disability unless: (1) the employee poses a direct threat — significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation; or (2) an accommodation would impose an undue hardship — significant difficulty or expense to the employer.[vii] The EEOC has clarified that the COVID-19 pandemic meets the ADA’s direct threat standard.[viii] Title VII requires employers to accommodate an employee’s sincerely held religious belief, practice or observance unless the accommodation would impose an undue hardship on the conduct of its business — a lower undue hardship standard than under the ADA.[ix]
   Employers mandating vaccines should review their accommodation process in anticipation of an influx in accommodation requests. Employers should develop and communicate an easy process for employees to request accommodations, establish an interactive process that allows them to respond to employee requests in an expedited fashion, consider in advance the potential accommodations they can offer, and build a flexible repertoire of potential alternative accommodations based on employee location and duties.
   
   
10. Create a draft policy and communications. The ETS requires each covered employer to establish and implement a written mandatory vaccination policy unless the employer adopts an alternative policy requiring COVID–19 testing and face coverings for unvaccinated employees, which should also be documented to ensure consistent application. To meet the definition of ‘‘mandatory vaccination policy,’’ the policy must require vaccination of all employees, including all new employees as soon as practicable, other than those employees: (1) for whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination; or (3) legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely-held religious beliefs, practices, or observances that conflict with the vaccination requirement. Employer policies may still include additional safety standards, such as face-coverings and social distancing for all employees regardless of vaccination status.
    The ETS also requires employers to provide employees the following: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines;” (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for supplying false statements or documentation.
    
    Finally, the ETS also requires employer policies to promptly provide their employer with notice when they receive a positive COVID-19 test or are diagnosed with COVID-19 and to keep removed employees out of the workforce until they meet the criteria for returning to work. Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization. These additional requirements should also be incorporated into the employer’s policy.
    
    
11. Stay informed regarding the status of the ETS and other COVID-19 government regulations. We will continue to monitor developments. If you have any questions or would like additional information, please reach out to any L&B attorneys with whom you work.

[i] See COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926, and 1928).

[ii] Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, THE WHITE HOUSE, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-COVID-safety-protocols-for-federal-contractors/ (Sept. 9, 2021). Likewise, the new rule does not change the requirements for federal employees. Federal employees are required to be vaccinated through a separate Executive Order. See Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, The White House, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-requiring-coronavirus-disease-2019-vaccination-for-federal-employees/ (Sept. 9, 2021)

[iii]  Dept. of Labor, COVID-19 Healthcare Emergency Temporary Standard https://www.osha.gov/sites/default/files/covid-19-healthcare-ets-reg-text.pdf (last visited June 11, 2021). The CDC also has issued separate updated guidance that applies to all healthcare personnel while at work and residents while they are being cared for in a healthcare setting. Updated Healthcare Infection Prevention and Control Recommendations in Response to COVID-19, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-after-vaccination.html (Apr. 27, 2021).

[iv] COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926, and 1928) at 61421, citing (Psichogiou et al., September 13, 2021; Wei et al., July 5, 2021; Cavanaugh et al., August 13, 2021). The study also found that fully vaccinated individuals have an immune response (i.e., antibodies and neutralization) well above the levels observed in unvaccinated, previously-infected individuals. Id.

[v] Employers must also ensure that employees who are not fully vaccinated and do not report during a period of seven or more days to a workplace where other individuals are present are: (1) Tested for COVID– 19 within seven days prior to returning to the workplace; and (2) provide documentation of that test result upon return to the workplace. Id. at 61450.

[vi] The National Labor Relations Act obligates employers to bargain with existing unions over wages, hours, and terms and conditions of employment. 29 U.S.C. § 158 (a)(5).

[vii] 42 U.S.C.A. § 12112(b)(5)(a) (2009).

[viii] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC.gov, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitationact-and-other-eeo-laws (last visited December 16, 2020).

[ix] 29 U.S.C.A. §§ 701, 703(a)(1) (2014).