Frequently Asked Questions On OSHA Vaccine Mandate

On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”), acting at the direction of the President, promulgated an Emergency Temporary Standard (“ETS”) imposing various requirements on certain private employers throughout the US. Though enforcement of the ETS has been suspended pending the outcome of federal litigation, employers and employees should nonetheless be aware of the ETS and its implications for the workplace.  

Below is a brief Q&A discussing the new ETS and its impact on employers and employees:

WHAT IS THE ETS?

An ETS is essentially a federal standard promulgated by OSHA in accordance with the Occupational Safety and Health Act (the “OSH Act”). Though federal agency regulations generally undergo rigorous public scrutiny before implementation—known as a “Notice-and-Comment Period”—the OSH Act permits OSHA to temporarily forego that process if it determines that there is a “grave danger” to worker safety. By law, the ETS may remain in effect for six months or until otherwise superseded by a permanent standard.  

 WHAT DOES THE ETS REQUIRE? 

In a nutshell, the ETS requires select private, state, and local employers to adopt a written policy mandating that its employees receive the COVID-19 vaccine. As an alternative to vaccination, employers may mandate that its employees undergo weekly testing and wear face coverings in indoor settings.  The ETS imposes several other related obligations on employers, however, including: 

i)               obtaining proof of vaccination from employees;

ii)              providing paid time off to employees to become vaccinated and to recover from side effects of the vaccine;

iii)            providing certain notices to employees, including information about the COVID-19 vaccine and information about employees’ legal rights; 

iv)            reporting COVID-related hospitalizations and deaths to OSHA; and

v)              making available to OSHA certain documents about employee vaccination and testing, upon request. 

WHICH EMPLOYERS ARE COVERED BY THE ETS?

The ETS covers all private and state-level employers with 100 or more employees except for: 1) federal contractors governed by the preexisting COVID-19 Safer Federal Workforce Guidance or 2) healthcare service or support providers governed by a separate COVID-19 ETS. For purposes of determining whether an employer satisfies the 100-employee threshold, OSHA has instructed that employers must count each of their employees across all locations in the aggregate rather than on a location-by-location basis. In other words, if an employer has 100 or more employees across its entire workforce, it will be covered under the ETS unless an exception applies. 

Even for covered employers, however, some employees will be exempt. Specifically, OSHA has stated that the ETS vaccination mandate requirements do not apply to employees who: 1) do not report to a workplace where other individuals, such as customers or coworkers, are present; 2) work exclusively from home; or 3) work exclusively outdoors. Of note, the ETS does not necessarily prohibit employers from mandating that remote or outdoor workers be vaccinated; rather, the ETS simply does not require employers to mandate vaccinations for these workers. 

MAY EMPLOYEES REQUEST EXCEPTIONS FROM VACCINE MANDATES? 

Yes. The ETS states that employers may exempt employees from the vaccine mandates if they have either a medical condition that would put them at risk from the COVID-19 vaccine or a religious belief, practice, or observance that conflicts with the vaccine requirement. This exemption is consistent with federal civil rights laws that require employers to offer reasonable accommodations to employees with qualifying disabilities or religious beliefs. The Equal Employment Opportunity Commission, which oversees these civil rights laws, has issued separate guidance on requesting medical and religious accommodations. That guidance can be found here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

WHAT ARE THE PENALITIES FOR FAILING TO COMPLY WITH THE ETS?

 Covered employers who fail to comply with the ETS could face penalties of up to $13,653 per violation, as well as additional penalties for willful or egregious violations.

WHEN ARE EMPLOYERS REQUIRED TO BE IN COMPLIANCE WITH THE ETS?

As of the date of this publication, the compliance deadline for the ETS is uncertain. In its original guidance, OSHA stated that employers were required to comply with certain testing components of the ETS by January 4, 2022 and comply with all other requirements by December 6, 2021. Subsequent legal developments have put these dates on hold.

Specifically, on November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit temporarily halted enforcement of the ETS, also known as a “stay”. Because several additional parties had sought relief from the ETS in other appellate courts, all of the cases were consolidated on November 16 and submitted for a decision to the U.S. Court of Appeals for the Sixth Circuit pursuant to lottery process overseen by a panel for multi-district litigation. On November 17, the following day, OSHA announced that it had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

Thus, the fate of the ETS currently sits before the Sixth Circuit, which will decide whether to continue to leave the standard on hold or to allow it to be enforced as litigation progresses. Regardless of the Sixth Circuit’s decision, it is all but certain that questions about the enforceability of the ETS will ultimately be appealed to the Supreme Court for a final and binding decision. 

WHAT SHOULD EMPLOYERS AND EMPLOYEES DO NOW?

Employers  

To be fully compliant with the ETS, covered employers will need to adopt a written vaccine policy and take additional measures necessary to satisfy other aspects of the ETS, such as offering paid time off to employees for vaccination and providing required notices to employees. There may be other legal aspects to compliance, however, that are not evident on the surface of the ETS. For example, employers should consider whether to adopt policies and procedures for receiving and considering religious and medical accommodation requests that comply with federal civil rights laws. Employers should also consider whether there are state laws in states in which they have employees that would impose additional obligations, such as requirements to pay for COVID testing. 

Given the broad scope of legal issues raised by the ETS, employers with 100 or more employees should consult with legal counsel about whether and how to respond. For many employers—especially those that operate in several states—the cost of compliance may outweigh the risks while the ETS is stayed in federal courts. Ultimately, the decision about how to respond will involve both legal and business decisions. Employers should work closely with counsel to develop a plan.

Employees

Employees should monitor for any changes to their employers’ policies with respect to vaccinations. For employees who are already vaccinated, the ETS is unlikely to yield many changes aside from the need to show proof of vaccination to their employer. Unvaccinated employees who believe they are entitled to a religious or medical accommodation to a vaccine mandate should review their employers’ policy or consult with a human resources representative about how to submit their request. Where appropriate, employees should contact legal counsel about rights they may have with respect to vaccine mandates.