On November 4, 2021, the Occupational Health and Safety Administration (OSHA) formally announced its emergency rule that puts into practice President Biden’s directive that all employers with 100 or more employees must require their workers to get the COVID-19 vaccine or get tested every week.

OSHA’s Legal Justification and Reasoning

OSHA’s rule took the form of an Emergency Temporary Standard (ETS). The ETS was issued under OSHA’s statutory authority to protect employees from “grave danger” due to “exposure to substances or agents determined to be toxic or physically harmful.” Right now, there is no projected end date for this rule as OSHA has said that it will continue to monitor COVID-19 trends and will update the ETS once OSHA “finds the grave danger from the virus no longer exists for the covered workforce.”

OSHA will enforce this rule by investigating complaints that workers raise. The agency has a whistle-blower system that allows workers to report any possible violations at their workplaces. Employers can be fined up to $13,653 for a “serious” violation and up to $136,532 for any “willful” violations.

Who is Covered?

Currently, the ETS applies to employers that employ 100 or more employees. OSHA has indicated in the ETS that it is still assessing the “capacity of smaller employers” as to whether they be subject to the ETS as well and is seeking public comment on that issue.

The 100-employee threshold applies to companies that employ both full-time and part-time employees, including those working from home. Independent contractors do not count toward the 100-employee threshold. It does not matter if these employees are spread out across multiple locations.

In the ETS, OSHA provided some specific examples that we have found to be helpful. For instance:

  • If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there. If a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. (So long as the staffing agency has at least 100 employees, however, the staffing agency would be responsible for ensuring compliance with the ETS for the jointly employed workers.)
  • If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
  • If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be covered under the ETS mandate.
  • Generally, in a traditional franchisor-franchisee relationship, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.

As a general matter, OSHA has stated that the ETS excludes employees who work exclusive outdoors because it was unable to show that COVID-19 was a “grave danger” to those employees. Further, as of now, it is unclear what OSHA would consider “fully-vaccinated” and whether it would revisit this rule to require employers to require employees to obtain “booster” shots.

What Does the ETS Require Employers to Do?

  • Covered employers (100+ employees) must develop, implement and enforce a mandatory COVID-19 vaccination policy and/or testing requirement.
  • New Deadline: Covered employers must ensure that their employees are vaccinated against COVID-19 by January 4, 2022, or receive a weekly COVID test.
  • Employers must provide paid time off for workers who need to leave work to get the vaccination, or recover from any side effects due to the vaccination.
  • Employers are not required to pay for testing. However, other laws, regulations, or collective bargaining agreements may require the employer to cover costs for testing. However, employers have the right to mandate vaccines without a testing option.
  • An unvaccinated person in the workplace must wear a mask.
  • An employee who tests positive must be removed from the workplace until a negative test is obtained and all quarantine protocols are followed.
  • Employers must provide employees with information about the requirements of the ETS as well as policies and procedures as they will be implemented in the workplace. They should provide employees with the document “Key Things to Know About Covid-19 Vaccines;” information about their rights in regard to retaliation and discrimination; and information about knowingly providing an employer with fake documentation.
  • Employers must report and maintain records of an employee’s COVID-19 vaccination documentation and any test results.
  • Employers must make available to employees, information on the aggregate number of fully vaccinated employees at the workplace along with the total number of employees.
  • Employers must report work-related COVID-19 fatalities within 8 hours of notice of the death, and also must report work-related COVID-19 hospitalizations within 24 hours of learning of the hospitalization.

Is the ETS Legal and What Should Employers Do While It is Being Challenged?

The ETS presents complex legal issues. Once the ETS was published in the National Register, it was challenged immediately by states and employers who sued the federal government and its executive officers. The lawsuits – brought immediately to the Fifth, Sixth, and Eleventh Circuit Courts of Appeal – sought an emergency “stay” of the ETS. The Fifth Circuit acted immediately and stayed the ETS, saying there were “grave statutory and constitutional issues” with it.

While this litigation is expected to move quickly, it is expected that it will still take some time to reach the United States Supreme Court where the legal challenges will likely involve battles over states’ rights and courts’ deference to federal agencies’ interpretations of their own rules. Until then, courts throughout the country may ultimately decide the issue differently.

In the meantime, we recommend that employers plan, right now, to comply with the upcoming deadlines set forth in the ETS. At minimum, employers should know whether or not their employees have been vaccinated and should keep documentation of that.

The employment team at WSHB is available to address your questions and concerns regarding the ETS as you move forward in the day-to-day operations of your business. Please do not hesitate to contact the author of this article or any member of our team.

Helpful Links:

Summary of the Emergency Temporary Standard

Full text of the ETS.

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