OSHA “vaccination-or-test” ETS stay lifted – how should covered employers respond?

How did we get here?

OSHA published the ETS on November 5, 2021. (See our prior blog post here.) The ETS originally required employers to implement vaccination policies and undertake other compliance efforts by December 6, 2021 and to mandate weekly testing of employees who are not fully vaccinated, starting January 4, 2022.

Numerous challenges were immediately filed in courts across the country. Just one day after the ETS was published, the U.S. Court of Appeals for the Fifth Circuit issued a nationwide stay of the ETS. Subsequently, all challenges to the ETS were consolidated before the Sixth Circuit, and the Government filed a motion to dissolve the stay. That motion was granted on December 17.  As a result, the ETS is now effective.

What are the ETS deadlines now that the stay is lifted?  

Shortly after the Sixth Circuit's ruling, OSHA announced that it will exercise its enforcement discretion to effectively relax the ETS’s original compliance deadlines for employers taking good faith steps toward compliance. OSHA explained:

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. 

What happens next in the courts?

The legal challenges to the ETS are far from over. Multiple challengers have already filed emergency applications asking the Supreme Court to reinstate the stay of the ETS. How fast the Court will rule is uncertain at this time. Whether or not the Supreme Court reimposes a stay, the case will return to the Sixth Circuit for a ruling on the merits—as to which the Supreme Court may again have the last word. 

What should employers do now?  

Unless and until the Supreme Court reinstates the stay or the Sixth Circuit strikes down the ETS, the ETS applies to all covered employers. Employers that paused their compliance efforts during the initial stay should strongly consider ramping up good faith compliance efforts to avoid potential enforcement actions while the litigation plays out. Some of the key requirements OSHA will begin enforcing on January 10 include requirements that employers:

• Adopt an ETS-compliant vaccination policy; 
• Create a roster of each employee’s vaccination status containing the information specified in the ETS;
• Collect proof of vaccination from employees who are fully or partially vaccinated and verify that the proof is in one of the formats acceptable under the ETS; 
• Implement the ETS face covering requirements for employees who are not fully vaccinated;
• Provide supplemental paid time for employees to get vaccinated, as well as reasonable paid time to recover from side effects; 
• Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related in-patient hospitalizations within 24 hours of learning about them; and
• Provide employees with information required under the ETS, including that the OSH Act prohibits retaliation against employees who file an OSHA complaint.

Additionally, although the ETS testing requirement is effectively suspended until February 9, employers should consider developing compliant testing programs sooner rather than later, given the significant burdens associated with the testing requirement for employers with significant numbers of unvaccinated workers, and practical and legal considerations regarding the allocation of testing costs between employers and employees. For example, although the ETS itself does not require employers to pay for testing, state or local laws may require such payment, and some employers may decide to pay for testing for other reasons such as employee retention. Employers should also watch for expected guidance from the U.S. Department of Labor as to whether non-exempt employees must be paid for the time it takes them to be tested.  

It is also important to provide employees with clear communication about how the latest legal developments impact them. Many employees are confused by near daily press coverage of court rulings about the ETS and other federal vaccination mandates applicable to federal contractors (see our prior blog post here) and health care facilities. Explaining your response to the current legal landscape and your reasons can help ease employee concerns and improve morale.

How does this ruling impact employers in states that prohibit or restrict vaccination mandates?

A number of states have recently adopted laws that prohibit or restrict employer vaccination mandates. OSHA takes the position that the ETS preempts such laws to the extent they conflict with the ETS. That said, employers in these so-called “anti-mandate” states should nonetheless carefully consider what actions to take while the ETS is in effect. It may be advantageous to comply with both state law and the ETS to the extent possible, both to avoid legal conflict and because if the ETS is again stayed or is struck down, employers in “anti-mandate” jurisdictions will not have a preemption defense to state and local laws. 

How does the ruling impact federal contractors?  

The ETS states that it “do[es] not apply” to workplaces “covered under” the Safer Federal Workforce Task Force guidance for contractors and subcontractors subject to the federal contractor vaccination mandate. However, the contractor mandate is currently enjoined nationwide (for now) and the Government is not enforcing it.  OSHA may take the position that contractors with 100 or more employees must comply with the ETS while the contractor mandate remains blocked or if it is struck down, but this is unclear. Compliance could present challenges for contractors, because the ETS imposes different requirements than the contractor mandate, including, for example, the requirements to collect proof of employee vaccination (under the Task Force guidance, simply viewing the proof is enough); provide paid time for vaccinations and recovery from side effects; and mandate weekly testing of employees who are not fully vaccinated. Contractors should closely monitor developments from OSHA and the vaccine mandate lawsuits to determine if, when, and how to move towards ETS compliance before the January 10 and February 9 deadlines.  

What about states that have their own OSH plans?

Employers in nearly half of the states are not directly subject to the ETS because those states have their own OSH plans covering both private sector and state and local government workers. These states must adopt the ETS (or another standard that is “at least as effective as” the ETS) for it to take effect. Some of these states paused their efforts to implement the ETS in light of the Fifth Circuit's stay and the surrounding uncertainty. How quickly these states will move to adopt the ETS now that the stay is lifted, and what federal OSHA will do if a state delays or refuses to implement the ETS, remains to be seen. 
  
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For more information on the ETS, vaccination mandates, or other issues affecting your workplace, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.

Authored by George Ingham, Amy Folsom Kett, Zach Siegel and Shannon Finnegan*. 

*Shannon Finnegan is a Law Clerk in the New York office.