By: Carl E. Habekost
The Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) in the Federal Register on November 5, 2021. The ETS requires companies with 100 or more employees to implement a mandatory COVID-19 vaccination policy or require unvaccinated employees to wear facial coverings in the workplace and undergo weekly COVID-19 testing.
On November 6, 2021, the 5th Circuit Court of Appeals temporarily suspended the ETS to provide time for analysis of legal challenges brought by the Attorney Generals of several states as well as private employers. On November 12, 2021, the 5th Circuit Court of Appeals reaffirmed its suspension of the ETS. Lawsuits were filed in other federal courts challenging OSHA’s ETS. In cases of national interest involving multi-district litigation when lawsuits are filed with multiple courts challenging the same Administrative Agency order, a Circuit Court is randomly selected through the lottery system to hear and adjudicate the consolidated case. In this instance, the 6th Circuit Court of Appeals was selected to decide whether to uphold or lift the 5th Circuit’s order halting implementation of OSHA’s ETS for COVID-19 vaccination policy. The 6th Circuit Court of Appeals is based in Cincinnati, Ohio and is made up of 16 judges appointed by Republican and Democrat Presidents. A three judge panel from the 6th Circuit will now hear the consolidated case. Ultimately, however, the U. S. Supreme Court will likely decide the legal validity of OSHA’s ETS.
In the meantime, while the fate of the COVID-19 mandatory vaccination ETS is pending in court, employers may wish to become familiar with its requirements. Below are some of the more important considerations for compliance with the ETS:
- Adopt procedures for determining employees’ vaccination status
- Establish a COVID-19 mandatory vaccination policy; and for the unvaccinated employees a weekly COVID-19 testing policy and facial coverings policy
- Develop a plan for responding to disability and religious accommodation requests
- Develop a plan for tracking COVID-19 test results
- Prepare a written COVID-19 policy in compliance with the ETS
- Provide each employee with effective training about the ETS and the COVID-19 policy
- Establish clear procedures that require employees to promptly provide notice of positive COVID-19 test results or diagnosis
OSHA has provided templates for communication with employees and an informational Frequently Asked Questions on its website. Please contact a member of our Labor and Employment Section with questions or concerns.