On November 5, the Occupational Safety and Health Administration (OSHA) published an “emergency temporary standard (ETS)” specifying steps that employers with 100 or more employees must take “to protect unvaccinated employees” from COVID-19 infections in their workplaces. The ETS requires targeted employers to comply with most provisions by December 6, and with requirements for testing of unvaccinated employees by January 4, 2022; it remains in place for 6 months.
However, at least a dozen major lawsuits have been filed against the rules, the effectiveness of which are stayed as of this writing by an order issued by a panel of judges in the Fifth Circuit Court of Appeals. On November 16, the Judicial Panel on Multidistrict Litigation resolved the overlaps by assigning the Sixth Circuit (based in Ohio) to hear the consolidated cases. Depending on the outcome of the litigation, the ETS may or may not ever become effective … but it does illuminate OSHA’s thinking about appropriate employer responses to the ongoing COVID pandemic.
The remainder of this note describes OSHA’s ETS requirements, and the scope of the special authority OSHA is using to adopt it.
How does an “emergency” justify OSHA in creating an ETS?
Although most OSHA rulemakings require (extensive!) procedures, the OSH Act of 1976 does give OSHA authority to promulgate an ETS when the agency finds both of the following (29 USC 655(c)(1)(A)-(B)):
(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and
(B) that such emergency standard is necessary to protect employees from such danger.
OSHA finds that the ongoing COVID pandemic presents grave danger, in general and in workplaces, especially to unvaccinated individuals (workers), and that the ETS provisions it adopts are necessary to protect endangered employees. In staying the rule, the Fifth Circuit panel disagrees with both sets of finds. The court finds the assertions of danger to be too broad because they are based on the assumption that all locations present grave risk of COVID infection, and too narrow because they apply only to employers with 100 or more employees. The court also finds the requirements presented in the “one-size-fits-all” ETS to be too generalized and blunt to be reasonably applied to thousands of workplaces.
Which employers would be subject to the ETS?
OSHA would limit the scope of the ETS to employers with a total of 100 or more employees – at all workplaces. However, the ETS would not apply to:
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Workplaces covered under the Safer Federal Workforce Task Force COVID–19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or
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Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of § 1910.502 (I wrote about these rules HERE).
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The employees of covered employers:
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Who do not report to a workplace where other individuals such as coworkers or customers are present;
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While working from home; or
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Who work exclusively outdoors
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As noted above, the Fifth Circuit panel decision finds this scope insufficiently-tailored to justify emergency rules.
What requirements does the ETS seek to create?
- Subject employers must establish a written vaccination and/or testing policy
The ETS would require each employer with 100 or more employees to establish a written mandatory vaccination policy, which may include provisions for a testing alternative. The policy:
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must require vaccination of all employees, including vaccination of all new employees as soon as practicable, other than employees:
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For whom a vaccine is medically contraindicated;
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For whom medical necessity requires a delay in vaccination; or
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Who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement;
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may also allow any employee not subject to a mandatory vaccination policy to choose either
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to be fully vaccinated against COVID–19 or
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provide proof of regular testing for COVID–19 and wear a face covering
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Subject employees must take additional steps to make their policies effective
In order to accomplish this policy, the ETS would also require each subject employer to do the following:
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determine the vaccination status of each employee, including providing specified form(s) of proof of vaccination by each employee who claims to be vaccinated
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support employee vaccinations, by providing paid time off for vaccinations (up to 4 hours), and reasonable time and sick leave for recovery if necessary
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require unvaccinated employees to receive COVID tests at least every 7 days and provide specified form(s) of proof of testing
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require any employee who tests positive for COVID to notify the employer, and be subject to removal from the workplace following Centers for Disease Control and Prevention (CDC) guidance
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ensure that non-vaccinated employees wear compliant face coverings when working indoors or in a vehicle
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provide information to employees about ETS requirements, the employer’s policy and procedures
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report each COVID-related occupational injury or illness
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create, maintain, and provide records of these activities
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What’s next?
OSHA set the ETS to become effective on November 5, 2021, with compliance to begin December 6 except for testing regimes for non-vaccinated employees that were to begin by January 4, 2022. All are presently on hold because of the Fifth Circuit opinion. As of this writing, the Sixth Circuit has not yet scheduled any action in the consolidated case, which could eventually end up before the Supreme Court. OSHA may also pursue a different or complementary rulemaking, perhaps targeting narrower subsets of employers analogous to its separate COVID rules for healthcare employers.
While the OSHA ETS is stayed, employers around the country should consider appliable state and local requirements and guidance from OSH and health agencies including the CDC
Self-Assessment Checklist
Has the organization assessed its operations for COVID exposure risks to employees, and determined the levels of exposure hazard created by each job?
If so, has the organization implemented information and precautionary measures, based on CDC guidelines, applicable OSHA regulations or guidelines, state and local OSH and health requirements and guidelines, or other sources?
Has the organization prepared a COVID infectious disease preparedness and response plan for each workplace, containing all or some of the following ?
Information about COVID hazards and transmission
Means to protect against exposures (engineering, work practice, administrative, PPE), including changes in pre-COVID practices
Provisions for employee vaccinations, mandatory or optional, and verification procedures
Information and training to ensure that employees understand this information and can (and will) follow prescribed practices
Means to ensure effective implementation and tracking
Where Can I Go For More Information?
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OSHA
- COVID ETS (11/5/21 Federal Register)
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com