UPDATED 11/18/21: The Court of Appeals for the Sixth Circuit has been selected to hear the consolidated case challenging the Biden Administration’s vaccine-or-test mandate for large employers following a lottery conducted by the Judicial Panel on Multidistrict Litigation.  The Sixth Circuit will decide whether to continue, modify, or lift the Fifth Circuit’s November 12, 2021 order staying the ETS and directing OSHA to stop implementation and enforcement pending further judicial review.  No matter what the Sixth Circuit decides, the Supreme Court of the United States will likely have the opportunity for the final say on the ETS.  For now, OSHA has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation”, according to a statement on their website dedicated to the ETS.  FVLD will continue to provide updates as the legal landscape develops.

UPDATED 11/15/21: On November 12, after we published this newsletter, the Court of Appeals for the Fifth Circuit reaffirmed its order staying the ETS and directed OSHA to stop implementation and enforcement pending further judicial review.  While the Fifth Circuit’s order halts implementation, the story of the ETS is not over.  Challenges to the ETS are pending in nearly every U.S. circuit court of appeals.  As a result, the Judicial Panel on Multidistrict Litigation is likely to conduct a lottery to determine which circuit court of appeals will be assigned to continue, modify, or lift the Fifth Circuit’s order and   , the Supreme Court of the United States may reserve the final say on the fate of the ETS.  In light of the uncertainty, employers would be prudent to monitor the situation closely and FVLD will endeavor to provide updates as new legal challenges are filed and as rulings are made.

On November 5, 2021, under the direction of President Biden, the Occupational Safety and Health Administration (OSHA) issued its long-awaited Emergency Temporary Standard (ETS) requiring private employers with 100 or more employees to ensure that most of their workers be fully vaccinated or provide negative COVID-19 test results on at least a weekly basis.  The ETS comes after employers and employees alike speculated for weeks over what the details would be.  This newsletter addresses a number of questions that we are receiving from businesses about the ETS.  We are also including some helpful links.

How are employees counted to determine whether an employer meets the 100-employee threshold for coverage under the ETS?

  • For a single corporate entity with multiple locations, all employees across all locations count towards the 100-employee threshold.  For example, a corporation with 100 employees across 10 locations nationwide will be covered under the ETS.  Two or more related entities may be regarded as one employer if they handle safety matters as one entity, in which case the employees of each related entity would count towards the threshold.
  • In traditional franchisor-franchisee relationships where a franchise is independently owned and operated, the franchisor and franchisees would generally be separate entities for coverage purposes.

What date should employers use to determine whether they meet the 100-employee threshold?

  • The determination of whether an employer meets the 100-employee threshold should be based on the number of employees as of November 5, 2021.  If the employer has 100 employees as of this date, then the requirements apply for the duration of the ETS (even if the number of employees falls below 100 after November 5, 2021).

Are certain employees or employers exempt from the 100-employee threshold?

  • Generally, no.  Employees who work offsite, part-time employees, employees who work from home, temporary and seasonal employees employed directly (not obtained from a temporary staffing agency), employees who are minors, employees who are vaccinated, employees who work outdoors, and union employees all count towards the 100-employee threshold.
  • Independent contractors and temporary employees employed by a staffing agency do not count towards the host employer’s 100-employee threshold.  Where employees of a staffing agency are employed temporarily by a host employer, such employees would count towards the staffing agency’s threshold, but not for that of the host employer.

Will employers subject to the ETS have to implement a mandatory vaccination policy?

  • Employers subject to the ETS are required to establish and implement either (1) a written mandatory vaccination policy for all employees or (2) a written policy requiring unvaccinated employees to wear face coverings and submit to weekly COVID-19 testing.  Employers with existing policies should ensure that their policies satisfy the requirements set forth in the ETS.

How does testing for unvaccinated employees work?

  • Employees who are not fully vaccinated must be tested once every seven days.  Employers are not required to cover any costs associated with testing under the ETS, but state and local laws or collective bargaining agreements may require them to do so.  Like the vaccination status documentation requirement, employers must collect employee test results and treat them as confidential medical records.
  • Employee’s may take laboratory tests, at-home or over-the-counter tests, or point of care tests so long as the tests are administered in accordance with the authorized instructions and they are not both self-administered and self-read unless observed by the employer.

What happens if an employee tests positive for COVID-19?

  • Employers must require employees who test positive for or who are diagnosed with COVID-19 to promptly notify them regardless of vaccination status.  Employers must remove employees who test positive for COVID-19 from the workplace.  Under the ETS, removal means temporary removal from the workplace until the employee (1) receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test (most common test) if the employee chooses to seek a NAAT test for confirmatory testing; (2) meets the CDC’s “Isolation Guidance” return to work criteria; or (3) receives a recommendation to return to work from a licensed healthcare provider.  Employees who are removed from the workplace may be required to work from home if suitable.  

Will employers need to determine the vaccination status of each employee?

  • Yes, employers will need to obtain proof of vaccination (or weekly test results for unvaccinated employees) and keep a record and roster of each employee’s vaccination status.  The record and roster are considered employee medical records under the ETS and must be maintained confidentially and separate from an employee’s personnel file.
  • The following are the only acceptable forms of proof of vaccination status under the ETS:
    • the record of immunization from a health care provider or pharmacy;
    • a copy of the U.S. COVID-19 Vaccination Record Card;
    • a copy of medical records documenting the vaccination;
    • a copy of immunization records from a public health, state, or tribal immunization information system; or
    • a copy of any other official documentation that contains the type of vaccine administered, the date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
  • If an employee cannot provide one of the forms of acceptable proof above, then a signed dated statement in the form specified by OSHA will be acceptable.

Are there exceptions to mandatory vaccination or weekly testing?

  • Yes, employees who cannot be vaccinated due to sincerely held religious beliefs or medical reasons must wear face coverings and submit to weekly COVID-19 testing in accordance with the ETS.  In the event such an employee cannot wear a face covering and submit to weekly testing due to sincerely held religious beliefs or medical reasons, then the employee may be entitled to a reasonable accommodation absent undue hardship to the employer.
  • Employees who work from home, work exclusively outdoors, or do not report to a workplace where other individuals, such as coworkers or customers, are present are not subject to mandatory vaccination or weekly testing.

Will employers need to inform employees about the details of the ETS?

May employers require employees to use personal time or sick leave to receive a vaccine or to recover from its side effects?

  • There is a distinction between obtaining vaccines and recovering from side effects.
  • Employers must provide unvaccinated employees up to four hours of paid time off to receive each primary vaccine dose (the Pfizer-BioNTech and Moderna vaccines have two primary doses, while the Johnson & Johnson vaccine has a single primary dose).  Employers may not make employees use existing personal time or sick leave to receive a primary vaccine dose.
  • Employers may require employees to use their accrued sick leave (or personal time if the employer does not distinguish between personal time and sick leave) to recover from the side effects of the vaccine.

When does the ETS go into effect and how long will it be in effect?

  • Employers subject to the ETS must have mandatory vaccination or weekly testing policies in place, maintain vaccination status records, provide employees with paid time off to become vaccinated and recover from side effects, ensure non-vaccinated employees wear face coverings in the workplace, and provide employees with information on the ETS by December 6, 2021.
  • Employees must be fully vaccinated or submit to weekly testing by January 4, 2022.
    • Under the ETS, if an employee completes the entire primary vaccination series by January 4, 2022, that employee does not have to submit to weekly testing, even if the employee has not yet completed the two-week waiting period that is required to meet the definition of fully vaccinated.  The primary vaccination series takes 1 day for the Johnson & Johnson vaccine, 21 days for the Pfizer-BioNTech vaccine, and 28 days for the Moderna vaccine.
  • The ETS will remain in effect for six months, or until May 5, 2022.

What will happen if an employer does not comply with the ETS?

  • Employers that fail to comply with the requirements of the ETS can face OSHA penalties of up to $13,653 for each serious violation and up to $136,532 per willful or repeated violation.

When will the ETS become permanent?

The ETS is effective now as a temporary measure because of the serious danger that the coronavirus presents, but the ETS is not yet permanent.  The public may submit comments until December 6, 2021 about whether OSHA should adopt the ETS as a final or permanent standard.  Depending on the comments OSHA receives, it may revise the ETS before it adopts a final standard.

May states pass laws to prohibit or limit an employer’s ability to require vaccines for employees?

  • The ETS explicitly preempts state and local requirements that limit the authority of employers to require vaccination, face coverings, or testing of employees.  The ETS does not preempt state and local governments or businesses from requiring face coverings, vaccination, or testing in order to enter offices, restaurants, or other public spaces.

Have there been any legal challenges made to the ETS?

Yes.  There have been challenges questioning the constitutionality of the ETS and OSHA’s authority to issue it.  Moreover, staying abreast of the status of legal challenges to the ETS is just as important as understanding its requirements.  As expected, the ETS hit a roadblock shortly after it became effective when the federal Court of Appeals for the Fifth Circuit issued an order blocking the ETS from taking effect nationwide.  Challenges to the ETS and, more specifically, OSHA’s authority to issue it, are pending in multiple federal Courts of Appeal.  For now, the fate of the ETS is up in the air.  Courts will need to come to a decision soon, as the first major ETS deadline comes on December 6, 2021.

If challenges have already been made to the ETS, and if more challenges to it will be made, what should an employer do?

Employers should consult with their legal counsel about their specific circumstances.  Generally, employers would be prudent to prepare to comply with the ETS to avoid penalties for noncompliance, if the ETS is upheld.  FVLD will endeavor to provide updates as legal challenges are filed, developments unfold, and the landscape becomes more clear.

Are there any additional helpful links where one can learn more information?

Yes.  In addition to those set forth above, here are a few more:

FVLD publishes updates on legal issues and summaries of legal topics for its clients and friends. They are merely information and do not constitute legal advice. We welcome comments or questions.
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