OSHA'S Emergency Temporary Standard for COVID-19 Vaccination and Testing Subject to Emergency Stay of Enforcement by the Fifth Circuit Court of Appeals

By:  Michelle High

            On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) published an Emergency Temporary Standard (“ETS”) relating to COVID-19 vaccination and testing for employers in the Federal Register. The ETS relates to any employer who has a total of 100 or more employees company-wide at any time the standard is in effect. 

            In response to the publication, Mississippi, Texas and Louisiana, along with other states and private businesses, immediately filed a lawsuit requesting review of the ETS and an emergency stay of enforcement by the U.S. Court of Appeals for the Fifth Circuit.  Over the weekend, the Fifth Circuit Court of Appeals granted the request for an emergency stay, pending further action by the Court.

            While the future of the ETS is unclear, employers need to stay abreast of the developing litigation and be prepared for implementation of the standard, should it be permitted to proceed.    

            The ETS relating to COVID-19 vaccination and testing requires covered employers to:

  • Create and implement a written mandatory COVID-19 vaccination policy for their workplace. A covered employer may allow exceptions from the mandatory vaccination requirement for those employees who provide the employer with a verified negative COVID-19 test at least weekly and wear a face-covering when indoors or in a vehicle with another person for work purposes (with limited exceptions).  However, employers are not required to allow this exception.  Furthermore, employers are responsible for enforcing their vaccination policy whether or not they allow for such an exception.
  • Establish procedures for reporting a positive COVID-19 test to the employer and for the immediate removal of the employee from the workplace.
  • Determine the vaccination status of each employee and obtain an acceptable proof of vaccination.  Employers must maintain records of each employee’s vaccination status.
  • Covered employers must provide employees up to four hours of paid time off to receive their vaccination and a reasonable time and paid sick leave to recover from side effects experienced following any vaccination dose to the employee for each vaccination dose.  Employers may require employees to use existing paid sick leave benefits to offset these costs, if available.
  • Covered employers who allow exceptions to the mandatory vaccination policy for individuals who prefer to wear a face-covering in the workplace and be tested for COVID-19 on a weekly basis, are not required to pay for the cost associated with testing pursuant to the ETS.  However, an employer may be responsible for the cost if required by state or local law, or a collective bargaining agreement. Likewise, the employer can voluntarily elect to assist with those costs.
  • Employers may not prevent an employee from voluntarily wearing a face-covering, regardless of vaccination status, except in those situations when doing so would create a serious workplace safety hazard.
  • Employers must provide employees with information about the requirements of the ETS and the employer’s workplace policies / procedures that have been implemented consistent with the ETS. Additionally, employers must provide employees with a copy of the CDC’s document entitled “Key Things to Know About COVID-19 Vaccines”; information about protections against discrimination and retaliation; and information about laws that provide criminal penalties for knowingly supplying false statements or documentation.

            Reporting and recordkeeping requirements related to COVID-19 hospitalizations and fatalities are also contained within the ETS.  Specifically, employers must maintain of a roster of employee vaccination status and proof of vaccination for each employee.  Additionally, employers must report to OSHA each work-related COVID-19 fatality within eight hours of learning about it. Employers must also report each work-related COVID-19 in-patient hospitalization to OSHA within 24 hours of learning about it.

            Significantly, the ETS does not apply to workplaces that are subject to Federal Contractors Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, which implements Executive Order 14042, or those workplaces that are covered by the COVID-19 Healthcare ETS issued by the Centers for Medicare & Medicaid Services for healthcare workers at facilities that participate in Medicare and Medicaid programs. Additionally, the federal contractors’ deadline for vaccination compliance is being pushed back to January 4, 2022, to coincide with the requirements of the new ETS and CMS directive.

            The ETS also does not apply to employees who work remotely or employees who work exclusively outdoors; however, employers can enforce vaccination or testing requirements for these employees if they choose.

            The ETS was published to the Federal Register on November 5, 2021, and also serves as a proposed rule.  It is effective immediately upon publication and with the exception of its mandatory testing for unvaccinated employees, its requirements will go into effect on December 5, 2021.  The requirement of mandatory testing for unvaccinated employees will become effective January 4, 2022.

            An employer’s failure to comply with the requirements of this new ETS could result in fines of $14,000 per violation.   

Access to the Emergency Temporary Standard is available through the link below: