January 13, 2022, update on legal challenges: The Sixth Circuit lifted the stay on December 17, 2021, allowing the ETS to go into effect. OSHA posted modified enforcement deadlines stating, “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. OSHA will work closely with the regulated community to provide compliance assistance.” Opponents of the ETS filed with an emergency stay request with the U.S. Supreme Court. On Friday, January 7, 2022, the justices heard arguments on the vaccine-or-test ETS for large companies and a vaccine mandate for health care workers. On January 13, the U.S. Supreme Court issued a stay on the Occupational Safety and Health Administration’s COVID-19 vaccination emergency temporary standard.

The Occupational Safety and Health Administration (OSHA) has issued an emergency temporary standard (ETS) that requires large employers to ensure that their workers are fully vaccinated against COVID-19 or tested for it at least weekly. As lawsuits challenging the enforceability of the OSHA vaccination rules are ongoing, employers are wondering what to do and how much time they have. The third webcast in the series, COVID-19 Vaccines and Your Workforce—OSHA’s Emergency Temporary Standard, presented by Diana M. Bardes, Partner at Mooney, Green, Saindon, Murphy & Welch, P.C. in Washington, D.C., offered some insights.

What would the ETS require if it stands?

The ETS would require covered employers (those with 100 or more employees) to either ensure that their workforce is fully vaccinated or require any workers who remain unvaccinated to undergo weekly COVID-19 testing and wear a face covering at the workplace. Employers would show compliance with the ETS by developing, implementing and enforcing a written “vaccine or test” policy.

Under the ETS, employers do not have to offer a testing option. Employers would be able to mandate vaccination if Americans with Disabilities Act (ADA) and religious accommodations are taken into account in the policy. See the Equal Employment Opportunity Commission (EEOC) FAQs for accommodation guidance. The ETS provides a testing option as an alternative to vaccination. Covered employers are required to ensure that nonvaccinated employees get tested for COVID-19 at least weekly or within seven days prior to returning to work. The test must be cleared, approved or authorized by the Food and Drug Administration (FDA). This means that over-the-counter, at-home tests are not covered. The test cannot be self-administered unless observed by the employer or a telehealth proctor. If an employee tests positive for COVID-19, then they don’t need to test again for 90 days. See the OSHA ETS page for more details.

When do employers need to implement these requirements?

ETS has not been enforceable while legal challenges are pending, and the first major deadline has already passed. Originally, covered employers had until December 6, 2021 to develop a written policy, determine the vaccination status of employees, collect proof of vaccination and ensure that unvaccinated workers are masked in the workplace. ETS calls for covered employers’ workforces to be fully vaccinated, and those who are not would begin producing weekly test results on January 4, 2022.

Who pays for the testing?

This is a tricky area, Bardes said, and hopefully CMS will come out with more guidance if the ETS stands. In past guidance, CMS said that health plans generally must pay for testing costs without cost sharing if the patient is experiencing symptoms or has been exposed. But CMS guidance also says that health plans are not required to pay for testing for employment purposes. It is difficult for employers to distinguish between the two. OSHA’s vaccine mandate does not require employers to bear the cost of testing; however, it specifically notes that some state laws may impose that requirement.

Legal Challenges Pending

Since this webcast was recorded, and as of December 10, 2021, all three prongs of the Biden Administration’s vaccine-or-test requirement have been halted or temporarily unenforceable nationwide. The three prongs apply to the following groups of employees:

  • Private employers with 100+ employees
  • Federal contractor employees
  • Health care employees at CMS-certified facilities.

The government has filed appeals in all of the above. Time lines are unclear.

Possible Outcomes

Focusing just on the private employer vaccine-or-test rule, the Fifth Circuit issued a stay order blocking the ETS on November 6, 2021. The federal government’s appeal is now before the Sixth Circuit. OSHA has suspended ETS enforcement pending the Sixth Circuit decision. The Sixth Circuit will rule on the Fifth Circuit order. Possible Sixth Circuit outcomes could be to keep, modify or lift the stay.

Many legal experts expect this case to go to the U.S. Supreme Court. Bardes explained that the Sixth Circuit is important because its ruling will frame the options for the Supreme Court. Specifically,

(1) If the Sixth Circuit keeps the stay (meaning it decides that the Fifth Circuit was right), it would go to the Supreme Court as a stay. Then, the Supreme Court could decline to hear the case, meaning the stay remains in effect.

(2) If the Sixth Circuit lifts the stay and lets the OSHA enforcement go on pending other litigation, Bardes said this framing would make it more likely that the Supreme Court would hear the case.

How should employers respond?

Uncertainty about how legal disputes over the ETS will play out has left employers wondering how best to prepare. Unfortunately, there are not a lot of good answers right now, Bardes said. There has been no consensus among service providers in employment and labor relations law about next steps. Employers are trying to figure out what’s best for their employees and customers. Bardes offered two practical steps employers could take now:

  • Be aware of state laws. If an employer wants to voluntarily implement a vaccine-or-test mandate, then the ETS doesn’t need to be a consideration under federal law, but employers in Montana, Utah and other states that have taken measures to prevent vaccine mandates need to be aware of state laws. If the ETS stands, it will supersede state laws. Twenty-two states have their own worker safety agencies which can decide to accept the ETS, modify it or draft an equivalent or more protective rule.
  • Review sample policies. For employers that want to go forward with a policy, a great starting point is to review the template policies from OSHA entitled “Mandatory Vaccination Sample” and “Vaccination or Testing and Face Covering Sample­.”

In light of the uncertainty, other things that employers could be doing now include providing employees with educational information on the vaccines and encouraging booster shots.

Watch the recorded webcast to learn about:

  • More details on covered employers and employees
  • What is required in the vaccination policy?
  • How to store vaccination verification documents and test results
  • Vaccination as a mandatory subject of collective bargaining
  • Various exemption request scenarios.

Developed by International Foundation Information Center staff. This does not constitute legal advice. Please consult your plan professionals for legal advice.

Jenny Lucey, CEBS
Manager, Reference/Research Services at the International Foundation

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