As most of you know, on Nov. 4, federal workplace safety officials released a mandate-or-test workplace vaccine emergency rule. The Emergency Temporary Standard (ETS) developed by the Occupational Safety and Health Administration (OSHA) would require all covered employers with 100 or more employees to either mandate employees be fully vaccinated against Covid-19 or require employees that are not fully vaccinated to test for Covid-19 at least weekly and wear a face covering. The ETS has other requirements including to: implement a written policy on vaccines, testing, and face coverings; provide information to employees on vaccines and the requirements of the ETS; provide paid time off to employees to obtain the vaccine and paid sick leave to recover from side effects following vaccination doses; obtain records and a roster of employee vaccination status; and comply with notice requirements when there is a positive Covid-19 case and when there is an employee work-related Covid-19 fatality or hospitalization.
Covered employers who ignore the ETS could face OSHA citations and penalties of up to $13,653 per violation, and additional citations or penalties for willful or egregious failures to comply. This means a covered employer could face a penalty of that amount for each facility, area within a facility, or each employee within a facility.
The ETS took effect immediately when it was published on Nov. 5, 2021. Enforcement had been scheduled to begin Dec. 6, 2021 for all portions of the ETS other than testing and vaccination compliance date. Several companies, organizations, individuals and 27 states filed legal challenges to the ETS, which is estimated to apply to about 80 million workers.
The day after the ETS became effective, a federal appeals court issued an order blocking it from taking effect, and affirmed that order on Nov. 12. Less than a week later, with challenges pending in virtually every judicial circuit across the country, the Judicial Panel of Multidistrict Litigation assigned the case to the conservative 6th U.S. Circuit Court of Appeals.
On Dec. 17, a surprise decision from a three-judge panel of the 6th Circuit once again jolted employers back into scramble mode, as the court dissolved the stay and cleared OSHA to enforce the ETS across the country.
The United States Supreme Court announced it would hear arguments on Jan. 7, 2022 and give employers a decisive answer about the enforceability of the ETS. Significantly, the Court rejected the chance to block the ETS pending the outcome of their final ruling, keeping the rule alive. By setting the oral argument for Jan. 7, the Court essentially forced employers to invest time and resources to prepare their compliance efforts, as the first compliance deadline was Jan. 10.
At the time of this writing, there is no way to know what the Court will do with the OSHA ETS or the timing of their decision. If the Court upholds it, covered employers will have had to follow the ETS as of Nov. 5, 2021 with some provisions effective on Jan. 10. This means every Dunkin’ franchisee should have determined they are are covered by the ETS, collected employee vaccine status, chose a mandate or testing options, trained employees on the ETS and have begun to start weekly testing on Feb. 9, 2022.
If the Court strikes down the ETS, OSHA will likely continue to proceed with the steps necessary to implement a permanent standard – that mirrors the ETS. According to OSHA, “The ETS also acts as a proposal for a permanent standard, and OSHA has decided to extend the comment period for that rule by 45 days.” That means written comments from the public are due by Jan.19, 2022.
As of this writing, an employer’s best course of action is to familiarize yourself with the requirements of the OSHA ETS and prepare to implement those requirements. OSHA will most likely have little patience with non-compliant employers who claim they held off implementing the mandate-or-test rule while awaiting a final court ruling—and the agency has significant weapons at its disposal in the form of citations and penalties for those not following the ETS edicts. •
Andria Lure Ryan is a partner in the Atlanta office of Fisher & Phillips LLP. She serves as the co-chair of the firm’s Hospitality Industry Practice Group, is a member of the firm’s Healthcare Practice Group and Covid-19 Task Force. Please visit Fisher Phillips Insight system and Vaccine Resource Center for Employers to get the most up-to-date information.
This article provides an overview of developing workplace issues. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.
