On Friday, a federal appeals court reinstated the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) requiring mandatory vaccinations or weekly testing for the workers of employers with over 100 employees.
The 2-1 decision by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati overturned a November ruling issued by their counterpart in the New Orleans, Fifth Circuit, that had blocked the rule.
Judge Julia Gibbons, a George W. Bush appointee, and Jane Stranch, an Obama appointee, were in favor of granting the administration’s request. Joan Larsen, a Trump appointee, dissented.
In the ruling, the panel noted that OSHA has historical precedent for using wide discretion to ensure worker safety and “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.”
The OSHA Standard, which went into effect on November 5, requires employers with over 100 employees to meet 2 deadlines. By December 5 there was an employer deadline for a written policy, collecting proof of vaccine, education, and masking of unvaccinated workers. That deadline has already passed. The other deadline required employers to assure that their employees either be vaccinated or conduct weekly testing by January 4, 2022.
Shortly after midnight on Saturday (December 18), OSHA announced that in order to allow companies time to come into compliance with the standard, OSHA will not be issuing citations for lack of compliance with the December 5 deadline prior to January 10, 2022. OSHA will not enforce the vaccine or test mandate requirement until February 9, 2022. OSHA added that it has the discretion to extend deadlines, as long as an employer is "exercising reasonable, good faith efforts to come into compliance with the standard.” Since employers need to educate employees, implement a policy, and collect proof of vaccines, if an employer is not making progress on these actions prior to the deadlines, OSHA could still exercise discretion to cite the employer. It takes 44 days (first vaccine plus 28 days, then second vaccine plus 14 days) to become fully vaccinated with the Moderna vaccine, so waiting beyond December 29 to begin communication to employees could lead to employer problems in fully implementing the standard by the deadline if the US Supreme Court does not stay the standard.
Within hours of the ruling, a coalition of 27 companies filed an appeal to the Supreme Court to block the mandate. Seven more groups filed appeals after that. The first coalition to file argued that the mandate would cause "harm" to thousands of businesses.
“It will impose substantial, nonrecoverable compliance costs on those businesses. Those businesses will be faced with either incurring the costs of testing for the millions of employees who refuse to be vaccinated—and passing those costs on to consumers in the form of yet higher prices at a time of record inflation—or imposing the costs of testing upon their unvaccinated employees, who will quit en-masse rather than suffer additional testing costs each week,” the appeal says.
The coalition is also asking the Supreme Court for an emergency stay to the ETS while the Supreme Court considers the appeal. The Supreme Court designates individual Justices to administer matters related to individual Courts of Appeal, and the 6th Circuit is assigned to Justice Kavanaugh. He could act on his own to issue a stay. But he will likely assign a case of this significance to the entire court. If he does, it requires a majority of the justices (five out of nine) to approve the stay.
On Monday, December 20, Justice Kavanaugh directed OSHA to file a response to the emergency stay requests by December 30. Therefore, it is unlikely that any decision on that is going to be issued before then, and probably won’t come until sometime after January 1, 2022.
Employers with 100 or more employees should alert their employees that the OSHA standard requires employees to wear masks beginning January 10, 2022, if they are not fully vaccinated and do not work entirely from home, or entirely outdoors. The Supreme Court is reviewing the case but may not issue a decision before then. If no action to halt the standard is taken by the Supreme Court by February 9, unvaccinated employees will also be required to test every 7 days for COVID 19. It takes time to become fully vaccinated (Johnson & Johnson:14 days; Pfizer: 37 days; Moderna: 44 days).
The ETS standard requires that employers pay for time to get vaccinated (4 hours per vaccine) and time to recover from the vaccine (up to 2 days for each vaccine). You cannot require employees to use available accrued paid sick leave for the vaccine time, but you can require accrued paid sick leave to be used for the recovery time. This paid time off is considered by the federal government to be the best incentive to get vaccinated, so this may be considered by OSHA to be “reasonable, good faith efforts to come into compliance” where an employer begins communicating that available paid leave prior to January 10. Finally, the OSHA ETS requires employee education on vaccination. Providing that education now, may also constitute “reasonable, good faith efforts to come into compliance.” A link to vaccine education we developed is provided below.
How We Can Help
Michael Best can help make sure your approach is both within the law and aligned with your organization’s needs and culture. Our Vaccination Policy Tool Kit is designed to cut through the confusion and empower you to make informed decisions. It provides practical advice and templates to help employers create their own workplace vaccination approach. We have updated it to address these deadlines, and will continue to update and notify subscribers with revised policies, forms, and communications as future developments occur.
Check out our COVID-19 Vaccination Policy Tool Kit!
Here is a Vaccination Education developed by our Best Workplace Solutions (HR Consulting) Team as part of that Tool Kit which can be tailored for your company by the Solutions team.
If you need assistance setting up your policies, testing process, employee benefits, document management our COVID 19 response team is here to help.