OSHA Issues Emergency Temporary Standard for COVID-19

Federal Court of Appeals Taps the Brakes

On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) issued its long-anticipated Emergency Temporary Standard (“ETS’) relating to employee vaccinations against COVID-19. On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit temporarily blocked the ETS from going into effect. This stay is temporary to give the courts time to consider the ETS’ legality. Nonetheless, employers should be prepared to implement the rule in the event the courts ultimately uphold the ETS and lift the stay.

The ETS applies to all employers with 100 or more employees. If an employer has fewer than 100 employees when the ETS goes into effect, the employer could later become a covered employer whenever it crosses the 100 employee threshold. Presumably, the ETS would continue to apply to that employer even if that employer were to again drop below the 100 threshold. Stated another way, once covered by the ETS, the employer remains covered so long as the employer was over the 100 employee threshold, however briefly, at some point in time.

The ETS effectively gives the covered employer a choice. It must either: (1) adopt a written mandatory vaccination policy for its employees (subject to medical or religious exemptions); or (2) adopt written policy which gives employees a choice between vaccination or regular testing and face coverings. To comply with the ETS, employers will have to gather from each employee “acceptable proof of vaccination status” which could include, among other things, a copy of the COVID-19 vaccination record card or an affidavit attesting to vaccination status. The employer will have to maintain a “roster” of each employee’s vaccination status, which must be maintained only so long as the ETS remains in effect.

The ETS effectively gives the covered employer a choice. It must either: (1) adopt a written mandatory vaccination policy for its employees (subject to medical or religious exemptions); or (2) adopt written policy which gives employees a choice between vaccination or regular testing and face coverings. To comply with the ETS, employers will have to gather from each employee “acceptable proof of vaccination status” which could include, among other things, a copy of the COVID-19 vaccination record card or an affidavit attesting to vaccination status. The employer will have to maintain a “roster” of each employee’s vaccination status, which must be maintained only so long as the ETS remains in effect.

The ETS required employers to adopt a written policy by December 6, 2021, and begin required testing by January 4, 2022. However, those deadlines are now on hold given the pending court action. The Court of Appeals’ written opinion of November 12 (confirming the temporary stay pending review) perhaps signaled its thinking on the ultimate validity issue. The Court noted that OSHA has issued just ten ETSs in its fifty-year history. Six were challenged in court, and only one survived. Still the COVID pandemic is at least unprecedented. Given this uncertainty, employers should consider preparing a standby policy now and be prepared to implement it should the Court allow the ETS to stand.