On November 5th, 2021, the federal Occupational Safety and Health Administration (OSHA) issued an emergency regulation that assigns US employers a central role in the Biden Administration’s COVID-19 pandemic response. Several coalitions of employers, religious groups and states immediately challenged the rule and within a day, the US Court of Appeals for the Fifth Circuit paused implementation. The emergency temporary standard (ETS) would require employers with 100 or more employees to mandate vaccination or weekly COVID-19 testing for employees at covered workplaces.¹ This is part of President Biden’s September 2021 “Path Out of the Pandemic Plan,” as summarized in WilmerHale’s previous client alert. That Plan laid out a six-pronged, comprehensive national strategy to combat COVID-19 and directed OSHA to issue this ETS as part of the approach to “Vaccinate the Unvaccinated.”

Courts are moving quickly to determine whether to permanently suspend the rule. But despite the current legal uncertainty, companies should be aware of several key requirements and approaching compliance deadlines. If it survives legal challenge, the ETS would take effect immediately for states under the jurisdiction of federal OSHA. The first compliance deadline would be December 5, 2021, although employers would have until January 4, 2022 to begin verifying weekly negative tests from unvaccinated employees. In addition, the ETS imposes significant new recordkeeping and reporting obligations on employers, including a requirement to maintain vaccination records as confidential employee medical records. Key provisions of the rule and issues to watch are outlined below.

Key Provisions

When Does the Rule Take Effect?

Federal OSHA States: Assuming the regulation survives legal challenges, states under the jurisdiction of federal OSHA, without an OSHA-approved state plan, would need to comply with the deadlines stated in the ETS. Although the ETS took effect on November 5, 2021, employers have until January 4, 2022 to implement testing for unvaccinated employees. Employers would need to comply with all other provisions by December 5, 2021.

State Plans: There are 22 states that implement OSHA-approved state occupational health programs, including California, Virginia, and Washington. If the federal ETS remains in place, those states would have the flexibility to either amend their state standards to be identical to or “at least as effective as” the ETS, or demonstrate that an existing state plan standard covering the same area is “at least as effective” as the ETS. These states would have until November 20 to notify federal OSHA of their plans. By December 5, these states would need to come into compliance with whichever option they elect. Thus, the compliance deadline for both categories of states is the same: December 5 (30 days from the publication of the ETS).

Who Is Covered by the Rule?

The ETS applies to all private employers with 100 or more employees across all US workplaces. This count includes part-time and temporary employees, as well as fully remote employees, but does not include independent contractors. The ETS’s vaccination or testing requirements, however, do not apply to employees who work from home, work outdoors, or do not report to a workplace where other individuals such as coworkers or customers are present. Additionally, the ETS does not apply to workplaces covered under Executive Order 14042, which mandates vaccination for employees of certain federal contractors, or to workplaces covered by the Healthcare ETS.

What Are Employers Required to Do?

Pursuant to the ETS, covered employers are required to come into compliance with all provisions of the ETS by December 5, 2021, except the testing requirements for unvaccinated workers. The major requirements are as follows:

• Mandatory Vaccination Policy: The ETS requires employers to establish, implement, and enforce a written mandatory vaccination policy for their workplaces, with an exception for employers that instead adopt a policy allowing employees to elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. The policy must include a process for employees to request an exemption from the vaccination requirement where the employees cannot get the vaccine due to medical reasons or due to a sincerely held religious belief. Employees eligible for an exemption to an employer’s mandatory vaccination policy must nonetheless adhere to additional safety protocols for all unvaccinated employees, including testing and face covering requirements.
• Verify Vaccination Status: Covered employers would need to determine the vaccination status of each employee—specifically, whether each employee is fully vaccinated (either two doses of Pfizer or Moderna or one dose of Johnson & Johnson). The ETS outlines acceptable forms of proof of vaccination and associated employer record-keeping requirements.
• Paid Time Off for Vaccination: All covered employers would be required to provide paid time off for employees to get vaccinated (up to four hours) and sick leave to recover from side effects, if needed. The four hours for vaccination must be in addition to any other leave to which the employee is entitled, but employers may require an employee to use accrued sick leave when recovering from side effects experienced following a vaccination dose. The ETS does not require that employers reimburse employees for transportation costs incurred while getting vaccinated.
• Face Coverings: Unvaccinated employees would need to wear a face covering when indoors in the workplace and when occupying a vehicle with another person for work purposes, subject to exceptions such as when an employee is alone in a closed room or while eating and drinking. The ETS clarifies that “[f]ace coverings, facemasks, and face shields are not respirators,” and respirators are not required under the ETS. Employers are not required to pay for any costs associated with face coverings under the ETS.

By January 4, 2022, employees who are not fully vaccinated would need to begin producing a verified negative test to their employer on at least a weekly basis. Notably, the ETS does not require employers to provide or pay for COVID testing, but other state laws or collective bargaining agreements may.² Employees’ proof of vaccination and test results must be treated as employee medical records, but OSHA notes that these records are not subject to its general retention requirement (duration of employment plus 30 years), but rather must be maintained and preserved while the ETS is in effect.

Legal Forecast

The rule is already facing legal challenges from employers and state governments, including arguments that it is outside the scope of OSHA’s legal authority and interferes with state powers under the Tenth Amendment. As mentioned above, the Fifth Circuit issued a temporary stay suspending the rule in response to a request from a group of businesses, religious groups, advocacy organizations and several states, including Louisiana and Texas. The court ordered the Biden Administration to respond by 5 p.m. on November 8, 2021, to the plaintiffs’ request for a permanent injunction. And another coalition of 11 states and several employers filed suit in the Eighth Circuit, arguing that the “mandate is unconstitutional, unlawful, and unwise.” In anticipation of these challenges, OSHA explained in the rule’s preamble that it has authority to promulgate emergency rules when it determines that “employees are exposed to grave danger” and “that such emergency standard is necessary to protect employees from such danger.”³ OSHA determined that “many employees in the US who are not fully vaccinated against COVID-19 face grave danger from exposure . . . in the workplace” based on evidence of the disease’s severity, transmissibility and prevalence in workplace populations.⁴ The pending challenges to the enforceability of the ETS likely target this determination. But on the date the rule was published, nearly 90 percent of the country was experiencing high or substantial community transmission according to the Centers for Disease Control and Prevention’s COVID-19 case tracker, lending support for OSHA’s determination.⁵

Clashes with states were already teed up before the rule’s publication, as several states established policies prohibiting private businesses from enforcing a COVID-19 vaccine mandate on workers—in direct conflict with OSHA’s standard. Given these conflicts, preemption issues are likely to take center stage in the emerging legal battles.⁶

Enforcement

Outside the courtroom, OSHA will confront additional challenges related to enforcement. The agency has only 1,850 inspectors to review the records of the 80 million workers affected by this standard. In light of the agency’s limited inspection capabilities, worker complaints may be a key driver of enforcement. Employers that violate the rule can face penalties of up to $13,653 for serious violations and 10 times that for willful or repeated violations.⁷

Request for Comments on Permanent Rule

Because the ETS is a temporary rule-making process, OSHA is required to commence proceedings to establish a permanent standard within six months.⁸  Although the ETS would have immediate effect if the stay were lifted, it also serves as a proposal under Section 6(b) of the OSH Act for a final standard. Accordingly, OSHA seeks comment on all aspects of this ETS and how it would be adopted as a final standard. Public comments will be accepted until December 5, 2021.

Takeaways

When President Biden announced his Path Out of the Pandemic Plan in September 2021, it was expected that OSHA would issue the ETS within a few weeks. Instead, it took nearly two months—which timing was likely due, in part, to negotiations between the Biden Administration and labor unions concerning the parameters of the test-out option. Despite the headlines touting a vaccine mandate, the ETS squarely permits testing as an alternative and does not ultimately require employees at all covered workplaces to be vaccinated. Some companies have expressed an inability to implement a mandate for their workforce, believing they would lose significant numbers of employees in a difficult labor market; an opt-out may assuage these concerns.

If the current stay is lifted, employers within the scope of OSHA’s ETS must prepare to implement new workplace safety protocols within the next month. By December 5, 2021, employers would need to implement comprehensive COVID-19 plans requiring employers to collect proof of vaccination or begin to stand up a testing system, as well as implement a variety of safety and recordkeeping measures. For the many employers that have not yet implemented vaccination and testing protocols that meet the requirements of the ETS, this may be a tight time frame. However, even employers operating in states with OSHA-approved state plans, such as California, will need to continue monitoring evolving state requirements to ensure compliance. Employers should be prepared to implement these requirements in the event legal challenges fail. The WilmerHale team is available to help your company understand its obligations and develop a plan to ensure you have compliant worker safety rules in place.