Back in November, the Fifth Circuit Court of Appeals issued a stay preventing the implementation of the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS), which requires private companies of 100 or more employees to verify that employees are either vaccinated or tested for Covid-19 weekly.
OSHA announced that it has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” While its ultimate fate is uncertain, employers should prepare to comply with the original standard until a final decision is rendered by the courts and/or further guidance is issued by OSHA.
Requirements of the ETS
Employers have an option when it comes to complying with the ETS”™ requirements. They must implement and enforce one of the following: (1) a mandatory COVID-19 vaccination policy, or (2) a policy requiring employees to either get vaccinated or elect to undergo regular Covid-19 testing and wear a face covering at work in lieu of vaccination.
For purposes of the ETS, a person is considered “fully vaccinated” 14 days after receiving the second dose in a two-dose series (such as Pfizer or Moderna) or a single dose-vaccine (such as Johnson & Johnson).
If an employer imposes a mandatory vaccination policy ”” provided the stay issued by the appeals court is lifted ”” employees will have to be vaccinated by the deadline set out in the employer”™s policy, which was originally supposed to be on or before Jan. 4, 2022. Importantly, the ETS does allow for exceptions from the vaccination requirement for employees with medical conditions that preclude them from being vaccinated and for employees with sincerely held religious beliefs that lead them to reject vaccination.
On the other hand, if an employer implements a policy requiring vaccination or weekly testing, all employees who are not fully vaccinated (including employees who have received only one dose of a two-dose series) must undergo weekly testing.
Starting the Process
In light of the rapidly approaching original deadlines, employers and employees may have a limited amount of time to comply with the requirements of the ETS. For employers, the priority should be to immediately determine if your organization is subject to the ETS (should it be upheld), which may require coordinating with legal counsel in situations involving multiple entities or complex organizational structures.
Companies should also determine which type of policy is appropriate for their workplace and develop a written policy outlining the specific requirements and logistics necessary to comply with the ETS if it is upheld. Employers should also communicate these requirements to employees as soon as possible to provide ample time to comply and to ensure compliance and avoid significant operational disruptions and/or fines in the event that the ETS is reinstated with abbreviated deadlines.
If vaccination is made mandatory, employees should start the process quickly to ensure they have enough time to meet the vaccination deadline based on which vaccine they choose.
The Financial Aspects
While employers may impose different levels or types of discipline, employees who fail or refuse to comply with their employer”™s vaccination or testing policies should expect to face disciplinary consequences ranging from warnings to employment termination.
Since OSHA may fine companies that do not comply with the ETS up to $13,653 per violation, employers are preparing to strictly enforce their OSHA-compliant policies to avoid potentially significant liability. It is also important to note that employees who quit or are terminated for non-compliance will likely be ineligible to receive unemployment.
One obvious question is: Who pays for the testing option? The answer: It depends on the employer”™s policy. The ETS does not require employers to pay for any costs or expenses associated with testing, but it also does not prohibit employers from paying for such costs.
While some employers may be required to pay for testing under state or federal laws, regulations, or collective bargaining agreements, most are not.
At the end of the day, the ETS was put in place to safeguard the health and safety of people with whom we come into contact. Ensuring that as many people get vaccinated as possible is an important resource in the battle against COVID-19 and toward achieving the much-desired return to normal.
Zachary Zeid is an attorney in the employment Labor, Employment Law & Employee Benefits practice at Pullman & Comley. He can be reached at zzeid@pullcom.com or (203) 330-2077.
