OSHA Issues Anticipated Emergency Temporary Standard Regarding COVID-19 Vaccination and Testing

Update: On Nov. 6, 2021, the U.S. Court of Appeals for the Fifth Circuit stayed enforcement of OSHA's newly issued ETS pending further action by the court. The court expedited briefing on the issue. For more details, see Holland & Knight's alert, "Fifth Circuit Stays OSHA's Emergency Temporary Standard on COVID-19 Vaccination and Testing," Nov. 8, 2021.)

On Nov. 5, 2021, OSHA published in the Federal Register an ETS that applies to employers in all workplaces that are under OSHA's authority and jurisdiction that have more than 100 employees firmwide or companywide. The ETS requires, with certain exceptions, that covered employees either 1) be fully vaccinated against COVID-19, or 2) wear face coverings and submit weekly COVID-19 test results to the employer. The ETS does not, however, apply to workplaces covered by the prior guidance for federal contractors and subcontractors, those covered by OSHA's healthcare standard, and local and state government workers in states that do not have an OSHA-approved State Plan. It also does not apply to employees of covered employers who are working from home, working exclusively outdoors, or who do not report to a workplace in which other employees or customers are present.

The ETS's preamble — which comprises more than 450 of the ETS's 490 total pages — explains that COVID-19 is a "grave danger" that has caused over 725,000 deaths in the United States and continues to pose a threat to unvaccinated workers. OSHA reasons that the ETS is necessary to protect unvaccinated workers, whose serious illness or death can largely be prevented through vaccination or required testing, the wearing of face coverings and the removal of infected workers from the workplace. It further concludes that the ETS is both technologically and economically feasible.

OSHA indicated an intent to proceed "in a stepwise fashion" to address the COVID-19 emergency and to explore the ability and need to impose similar requirements on smaller employers. OSHA invited public comment from employers with fewer than 100 employees regarding the ability and feasibility of a similar standard. OSHA also invited public comment on the current ETS, which also serves as a proposed rule. The deadline to provide written comments, including whether the current ETS should become a final rule, is Dec. 5, 2021.

The ETS expressly preempts inconsistent state and local laws and rules unless the relevant laws or rules are enacted under the authority of an OSHA-approved State Plan and are at least as effective as the federal standards. Covered employers thus should follow OSHA's ETS when it is more stringent than applicable state or local law.

Requirements

The ETS requires covered employers to develop, implement and enforce a mandatory COVID-19 vaccination policy or, alternatively, to establish, implement and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear face coverings at the workplace. Additionally, employers covered by the ETS are required to determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees as described in the ETS, maintain records of each employee's vaccination status and maintain a roster of each employee's vaccination status.

As to supporting vaccination and getting employees vaccinated, the ETS provides that employees should be provided reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose. With respect to testing for employees who are not fully vaccinated, the ETS requires covered employers to ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer). Face coverings are also addressed in the ETS. Employers must ensure that each employee who is not fully vaccinated wear a face covering, as per the Centers for Disease Control and Prevention (CDC) guidance, when indoors or when occupying a vehicle with another person for work purposes, with limited exceptions.

Under the ETS, covered employers must: 1) require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; 2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; and 3) keep removed employees out of the workplace until they meet criteria for returning to work.

Additionally, employers must provide employees with information about the requirements of the ETS and workplace policies and procedures established to implement the ETS, CDC information about COVID-19 vaccines, information about protections against retaliation and discrimination, and information about laws that provide for penalties for knowingly supplying false statements or documentation.

Some requirements previously in effect are reiterated, and the ETS requires covered employers to report work-related COVID-19 fatalities to OSHA within eight hours of learning about them and report work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization. Another important requirement of the ETS is that employers make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.

Effective and Compliance Dates

The effective date for the ETS is Nov. 5, 2021, the date that the ETS was published in the Federal Register.

Although the ETS is effective immediately, covered employers are not required to comply with the requirements of the ETS until Dec. 5, 2021 (with respect to all requirements except weekly testing for employees who are not fully vaccinated). Full compliance is required by Jan. 4, 2022. In short, all requirements of the ETS are effective by Dec. 5, 2021, except an employer's compliance with the requirement that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer). The latter requirement must be met by Jan. 4, 2022. Thus, employees have until Jan. 4, 2022, to complete the primary vaccination series, even if they do not meet the two-week waiting period required to be "fully vaccinated" by that date.

As for those states and U.S. territories (there are 23) that have their own federally approved state OSHA plans, covering both private sector and state and local government workers, the ETS requires that they be at least as effective as the ETS in protecting employees from COVID-19 hazards. These jurisdictions (Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington and Wyoming) have 30 days to either adopt the ETS or issue regulations which are at least as effective as the ETS, and 15 days (i.e., by Nov. 20, 2021) to inform OSHA which option they are choosing.

Who Pays for Testing?

The ETS does not require employers to bear costs associated with masking and testing. Employers thus may require employees who refuse the COVID-19 vaccine to pay for masks and weekly testing unless applicable state or federal law or a collective bargaining agreement provides otherwise. A number of issues inevitably will arise, however, regarding the cost of masking and testing.

For example, it is not clear whether employers are required to cover the cost of testing and masking for employees who seek an exemption from vaccination based on religious beliefs or a disability. Arguably, because vaccination is not "mandatory" under the OSHA ETS, no accommodations are needed, and employers thus may argue that they need not cover the cost of any such accommodations. In addition, although certain states require employers to reimburse workers for job-related expenses, employers may argue that the cost of masking and testing is for the employee's, not the employer's benefit (i.e., the employee opted for the masking and testing option instead of being vaccinated), and thus is not covered. Similarly, it is not clear whether the Fair Labor Standards Act (FLSA) requires the employer reimbursement for the cost of testing if the cost of such testing lowers an employee's effective rate of pay below the federal minimum wage. It is also an open issue whether the FLSA will require employers to pay for the time it takes employees to get tested. Employers likely will argue that because testing is optional and can be avoided by vaccination, the employer is not required to pay for the time an employee spends getting tested outside of normal working hours. These and other issues are likely to be heavily litigated in the near term.

Effect of Possible Challenges

Emergency temporary standards are an exception to the usual notice-and-comment rulemaking that agencies such as OSHA must comply with to satisfy the Administrative Procedure Act's requirements. An ETS takes effect immediately upon publication in the Federal Register, whereas permanent OSHA standards take effect only after publication, an opportunity for interested parties to submit comments, data or objections, and the conduct of a hearing over any objections, after which OSHA issues its final standard. Because the ETS procedure bypasses all of the usual standard-setting procedures, it can be challenged immediately upon publication in the Federal Register. An ETS is limited in its application to six months, and OSHA must simultaneously begin the standard notice-and-comment rulemaking process with publication of the ETS. Here, however, OSHA expressly provided that the ETS will become the final rule at the conclusion of six months after the publication date (Nov. 5, 2021). This in itself may be viewed as a violation of the standard-setting process, since it effectively precludes the careful analysis that the process for permanent standards requires. Challenges to a permanent standard must await completion of the notice-and-comment rulemaking process.

Notwithstanding any challenge to an ETS, its implementation is immediate in the absence of a stay or vacatur of the ETS by the U.S. Court of Appeals where the challenge is brought, which is subject to the discretion of the Court. In the 50-year history of OSHA, pre-COVID-19, OSHA had issued nine emergency temporary standards, only six of which were challenged in court. The last challenge to a pre-COVID-19 ETS occurred more than 35 years ago, in 1984. In the six challenges, the courts vacated the ETS in two of the cases, stayed the ETS pending appeal in one case, stayed the ETS pending notice-and-comment rulemaking in one case, and in only one case let the ETS take effect immediately. In the remaining case, where there was a race to the courthouse to challenge the ETS, the issue was whether the case should be transferred to another Court of Appeals for decision on the objections by several parties.

The Secretary of Labor has a heavy burden to invoke what the courts view as the extraordinary power to issue an ETS. The Secretary must support its determination that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards" and that the ETS is necessary to protect employees from the danger.

It is difficult to know what, if any, challenges to the ETS will be filed and whether a court hearing those challenges will vacate the ETS, stay it pending notice-and-comment rulemaking, or permit it to take immediate effect. If the Court is not immediately convinced that there is an urgent need for an ETS and grants a stay pending notice-and-comment rulemaking, that will inevitably lead to a hearing on such an objection. There will likely be expert witnesses on both sides of the issue, and it could be an indeterminate period of time before the process is completed and a permanent standard is promulgated, at which time there will obviously be passage of several months at the earliest before there is a final permanent regulation. There is then a 60-day period within which the permanent standard can be challenged in court. If the Court does not issue a stay or vacate the ETS, employers will have to comply with it even though it is being challenged.

Published only today, the next few days will provide a greater view of the landscape for this ETS. In addition to challenges to the regulation itself, news reports indicate that there will be a number of challenges to the constitutionality of the regulation as a violation of separation of powers. Holland & Knight will keep you apprised of meaningful developments.

Update: As noted above, just one day after the effective date of the ETS, the U.S. Court of Appeals for the Fifth Circuit stayed enforcement of the ETS pending further action by the court.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.