The fate of the ETS remains far from clear. Multiple emergency petitions have already been filed with the Supreme Court of the United States, seeking to further stay the ETS and a ruling that it is unenforceable. 

OSHA’s Emergency Temporary Standard on COVID-19 Vaccination and Testing (ETS) is now in effect. The U.S. Court of Appeals for the Sixth Circuit reinstated the OSHA ETS (which had previously been stayed by the Fifth Circuit) on December 17, 2021. OSHA then announced that for employers making reasonable, good faith efforts to comply with the ETS, it would not begin enforcing: (1) all ETS requirements other than testing until January 10, 2022, and (2) the ETS testing requirement for unvaccinated employees until February 9, 2022.

As explained in our November 8, 2021, ETS Alert, the ETS requires employers with 100 or more employees to develop and implement a policy requiring that employees either become fully vaccinated or undergo weekly testing and wear a face covering at work. The ETS also requires employers to determine and document each employee’s vaccination status, provide paid time to employees to become vaccinated and reasonable time and paid sick leave to recover from any side effects, remove employees from the workplace who test positive or are diagnosed with COVID-19 and report COVID-19 fatalities and hospitalizations to OSHA. Under the ETS, employers were initially required to comply with all requirements other than testing by December 6, with the testing requirement to be met by January 4, 2022. As noted herein, these dates have changed for employers making good faith efforts to comply.

The fate of the ETS remains far from clear. Multiple emergency petitions have already been filed with the Supreme Court of the United States, seeking to further stay the ETS and a ruling that it is unenforceable. While the Supreme Court’s earlier rulings do not clearly indicate the outcome here, it should be noted that to date, the Court has refrained from setting aside state and local COVID-19 vaccination mandates. It is not known when the Supreme Court will decide whether or not to stay the ETS. However, since the Court has requested that the Biden administration respond to the requests for a stay of the OSHA mandate by December 30, a ruling from the Supreme Court is not anticipated before then.

If the Supreme Court does not issue a stay, state or local restrictions on vaccine mandates will not likely protect employers from enforcement of the ETS. The ETS provides that it preempts state and local laws that conflict with its requirements, although we expect that issue to be litigated if the ETS is upheld. The ETS does not appear to preempt laws that impose obligations that go beyond the ETS, such as the New York City vaccination mandates, initially applicable to restaurants and entertainment venues, and now also applicable to all private employers effective December 27, 2021. Accordingly, employers should comply with more stringent state or local mandates, including those requiring vaccination (without a testing option) and masking of vaccinated employees.

Unless the Supreme Court issues a stay (or a stay is issued by all of the Sixth Circuit judges, en banc), employers should anticipate that OSHA will commence enforcement of the ETS. OSHA had suspended enforcement while the Fifth Circuit stay was in effect. However, OSHA’s website now states:

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.

Given the recent rise of COVID-19 cases in the United States and an omicron surge currently upon us, many employers are already reevaluating their approach to managing the risks COVID-19 presents to employee health and business continuity. Among the issues being considered (or reconsidered) are whether, when and how to return remote workers to the workplace and whether to include boosters in vaccination mandates.

In the absence of a further stay, employers are well-advised to make reasonable, good faith efforts to comply with the new deadlines. Preliminary steps (if not already taken) for compliance include: (a) determining and documenting who is and is not fully vaccinated, in a manner consistent with the ETS; and (b) deciding the approach for vaccination and/or testing if the ETS is or is not enforced. This second step, in particular, raises myriad legal and practical considerations (many of which are addressed in our ETS Alert)―not the least of which are managing the logistical and legal issues regarding mandatory testing―and if vaccines are mandated, the process for addressing requests for accommodations.

Employers making reasonable, good faith efforts to comply with the ETS will have until January 10, 2022, to comply with the ETS requirements other than testing, including:

1. Establishing, implementing and enforcing either: (i) a written mandatory vaccination policy or (ii) a policy requiring that employees either (a) be fully vaccinated or (b) provide proof of regular testing (discussed below) and wear a face covering at work.
2. Determining and documenting the vaccination status of each employee, including whether the employee is fully vaccinated. This includes maintaining a roster of each employee’s vaccination status and acceptable proof of full or partial vaccination status. The ETS specifies acceptable proof of vaccination, which includes copies of COVID-19 vaccination cards and medical records documenting the vaccination.
3. Providing each employee with reasonable time during work hours to obtain their primary vaccination dose(s), including up to four hours of paid time, including travel. In addition, employers must provide reasonable time and paid sick leave for employees to recover from the side effects of the vaccinations. 
4. Requiring employees to promptly notify them of positive test results or a COVID-19 diagnosis by a licensed healthcare provider and then immediately excluding such employees from the workplace. The ETS also specified return to work standards. (Employers may wish to consider requirements that potentially provide greater protection.)
5. Ensuring that unvaccinated employees wear ETS-compliant face coverings fully covering the nose and mouth whenever indoors or in a vehicle for work with another person, except under the specific circumstances delineated in the ETS.
6. Providing employees with the information required by the ETS and complying with OSHA informational and reporting requirements. Additional information about these requirements is found on the OSHA website.

Employers making reasonable, good faith efforts to comply with the ETS will have until February 9, 2022, to comply with the ETS requirements for testing unvaccinated employees, including the following:

1. Unvaccinated employees reporting at least once every seven days to a workplace where others are present (such as co-workers or customers) must be tested at least once every seven days and provide documentation of the most recent results on or before the seventh day on which they last provided a test result.
2. Employees reporting less frequently to a workplace with others must be tested within seven days before entering the workplace and provide documentation of the results upon their return. The employer must retain the test results, which are considered medical records.

Rather than awaiting definitive rulings, employers are well-advised to continue their efforts to manage COVID-19 work-related issues with the vigilance needed to address this serious threat to employee health and business continuity. As we indicated in our ETS Alert, nothing in the litigation over the OSHA ETS affects the rights of employers to implement mandatory vaccination and/or testing programs voluntarily. Most programs have and should survive legal challenge if drafted and implemented appropriately. In adopting and implementing their approach for ETS compliance, employers should be mindful of legal issues under various federal, state and local laws, as well as the potential impact upon employee relations and retention, many of which are identified in our ETS Alert.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Jonathan D. Wetchler, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.