Separate and aside from the legal travails of the vaccine mandate for federal contractors, the vaccine mandate for employers with 100 or more employees has been subject to numerous legal challenges, too.  For the time being, the vaccine mandate is in effect, though the US Supreme Court is scheduled to hear arguments later this month on its enforceability and constitutionality.

At President Biden’s request, in November 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued Emergency Temporary Standards (ETS), requiring employers with 100 or more employees ensure that each of their employees is fully vaccinated or tests for COVID-19 on at least a weekly basis (every 7 days).

Within days, the Fifth Circuit Court of Appeals enjoined enforcement of the ETS pending judicial review.  Shortly afterwards, the Sixth Circuit Court of Appeals heard OSHA’s emergency motion to dissolve the Fifth Circuit’s stay of the ETS.  On December 17, 2021, a three-judge panel of the Sixth Circuit issued an order dissolving the Fifth Circuit’s stay. Almost immediately, three petitions were filed in the U.S. Supreme Court asking it to block the mandate.

On January 7, 2022, the Supreme Court will hear oral arguments on the Sixth Circuit’s decision. However, until the US Supreme Court issues an opinion, the decision from the Sixth Circuit Court of Appeals governs and the ETS is in effect.

The issues before the US Supreme Court relate both to the reach of the President’s power and the constitutionality of the ETS. In brief, those issues include:

• • Whether OSHA has authority to implement a national vaccine-or-test mandate;
  • Whether a virus falls within the scope of OSHA’s authority to implement an emergency standard;
  • Whether Congress has to grant specific authority to OSHA for issuance of the ETS given its “vast economic and political significance”;
  • Whether the ETS was based on substantial evidence and that OSHA enacted the ETS in a reasonable manner.
  • Whether OSHA needs to show potential COVID-19 exposure in all workplaces in order to prove COVID-19 is a “grave danger”.
  • Whether the ETS violates the Commerce Clause in the US Constitution

Until these very complex issues are decided by the Supreme Court, the ETS remains in effect.  A summary of the key points of the ETS along with the new compliance dates follows.

• • Deadlines for Compliance. The new compliance dates according to OSHA are:
    • January 10, 2022: OSHA will not issue citations for noncompliance with any of the requirements of the ETS before January 10.
    • February 9, 2022: For testing requirements, OSHA will not issue citations for compliance with testing requirements, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.
  • Covered Employers. The ETS covers all employers with 100 or more employees. Part-time employees and remote workers are included in the number of employees for the purpose of determining coverage, but employees of staffing agencies need not be included. Only employees at U.S. locations are counted. Two or more related entities may be regarded as one employer – and thus their employees must be counted together – if they handle safety matters as one company.
  • Time Off for Vaccination. Covered employers must support vaccination by providing reasonable time, including up to four hours of paid time, to receive each vaccination dose. Employers must provide reasonable time off and paid sick leave to recover from side effects following each dose.
  • Masking. All covered employers must ensure that unvaccinated employees wear a face mask while in the workplace.
  • Vaccination or Weekly Testing. All covered employers must implement and enforce a policy that mandates their employees receive the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – unless the employer instead implements and enforces a policy mandating any unvaccinated employee to produce a negative test weekly and wear a mask while in the workplace. All covered employers must ensure that any employee still unvaccinated after the specified date (now no later than February 9, 2022, provided the employer is making good-faith efforts to come into compliance) begins producing a verified negative test to their employer on at least a weekly basis. COVID-19 tests that are both self-administered and self-read do not satisfy this requirement.
  • Acceptable Proof of Vaccination Status. Employers must determine the vaccination status of each employee. Acceptable proof of vaccination status is a record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card, a copy of medical records documenting the vaccination, or another copy of immunization records from a public health system. (If an employee is unable to produce proof of vaccination, a signed and dated employee attestation is acceptable.) These records must be preserved while the ETS is in effect and held in confidentiality and are subject to audit by OSHA.

Exemptions / Variations

• • Remote Workers. Employees who telework or do not report to a workplace where other people work are exempt from compliance with the vaccination and testing requirements. However, they still must be counted for purposes of determining whether the 100-employee threshold has been met.
  • Outdoor Workers. Employees who work “exclusively outdoors” are exempt from the ETS vaccination and testing requirements. An employee works exclusively outdoors if he or she works outdoors for the duration of every workday except for de minimis use of indoor spaces where others are present.
  • Part-time Workers. The ETS applies to part-time workers as well as full time workers, although the weekly testing requirements are adjusted if an unvaccinated part-time employee does not enter the office every week. If away from the workplace for a week or longer, the employee must produce a verified negative test within seven days before returning to the workplace.
  • Medical or Religious Exemptions. The employer vaccination policy required by the ETS should provide for those legally entitled to reasonable accommodation for disability or religious reasons. Such exempt employees must participate in the weekly COVID-19 testing requirement and wear face coverings
  • Previous Diagnosis of COVID. Employees who have previously contracted COVID-19 are not exempt from the vaccination, testing, or masking requirements.

It is advisable to confer with your human resources specialist about what modifications, if any, should be made to your employment manual and what processes and systems need to be implemented to timely comply with the ETS.  The attorneys in our Austin and Dallas office are available to consult with you on OSHA requirements, compliance, eligibility of the requirements, and/or a review of your company’s COVID-19 protocol. You may contact us at info@gstexlaw.com.

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