OSHA’s Emergency Temporary Standard Requiring Private Employers to Mandate Employee Vaccinations

On September 9, 2021, President Biden issued Executive Order 14042 which, among other things, instructed OSHA to prepare and issue an emergency temporary standard (ETS) requiring that all private sector employers with 100 or more employees (including such employers who are not federal contractors) implement a mandate that all of their employees be vaccinated against COVID-19. On Thursday, November 4, 2021, OSHA published the 490 page ETS. That same day, and in the days following, numerous federal lawsuits have been filed across the country seeking to enjoin and set aside the ETS on the grounds that the Biden Administration had grossly overstepped the constitutional limits on its powers. Two days later, on Saturday, November 6, 2021, the Fifth U.S. Circuit Court of Appeals in New Orleans issued an emergency temporary stay of the ETS due to “grave statutory and constitutional issues.” The Court’s stay has the effect of temporarily halting any efforts by the federal government to enforce the ETS. The Fifth Circuit has ordered the Biden Administration to file a statement of the federal government’s position by end of the day on Monday, November 8, 2021.

In the meantime (and while the Courts are further evaluating the constitutionality of the ETS), prudent employers may choose to familiarize themselves with the ETS and begin to make preliminary plans for compliance. To that end, the principle provisions of the ETS provide as follows:

• Employers (other than those covered by Federal Contractor rules or the Healthcare ETS) are covered if they have at least 100 employees company-wide at any time while the ETS is in effect.
• Generally, all employees of a covered employer are covered by the requirements of the ETS. Exceptions include those who do not report to a workplace where others are present, those who work from home, or those who work exclusively outdoors.
• Employers must implement mandatory COVID-19 vaccination policies unless they opt to implement an election for employees who are not vaccinated to undergo weekly testing and wear a face covering at work (generally, when indoors or in a vehicle with another).
  • Employers must dictate that employees who work away from the workplace must be tested within 7 days prior to returning to the workplace.
  • Employers must require employees to promptly provide notice when they receive a positive COVID-19 test.
  • Employers must immediately remove any employee from the workplace who tests positive or is diagnosed with COVID-19.
  • Employers must keep employees who test positive out of the workplace until they meet criteria for returning to work.
• Employers are not required to pay for the costs of testing by the terms of the ETS; however, other laws may require payment.
• Employers are required to determine the vaccination status of each covered employee, obtain proof thereof, maintain such records, and maintain a roster of each employee’s vaccination status.
• Employers must provide leave to employees to receive each vaccination dose (including up to 4 hours of paid time) and paid sick leave to recover from any side effects experienced.
• Employers must provide employees with the following information:
  • Information on the ETS and workplace policies and procedures established in compliance with the ETS;
  • The CDC’s “Key Things to Know About COVID-19 Vaccines”;
  • Information about protections against retaliation and discrimination; and
  • Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
• Employers must report work-related COVID-19 deaths to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patent hospitalizations within 24 hours.
• Employers are also required to provide, upon request by an employee or their representative, the aggregate number of fully vaccinated employees along with the total number of employees at that workplace.
• Although the impact of the current “stay” on regulatory deadlines is unclear, the ETS currently dictates that all requirements must be implemented by December 5th, and that weekly testing for unvaccinated workers must begin by January 4th.

The LCOJ employment team will continue to monitor further developments. In the meantime, if you have any questions, please feel free to contact any member of the employment team. Finally, COVID-19 and the vaccine mandates will, no doubt, be a topic of some discussion during the next free Quarterly Webinar (scheduled for December 2 at 8:30 a.m.). Details regarding registration for the Webinar can be found on the firm’s website.

Written By:
Attorney Ross W. Townsend