Here We Go (Again): OSHA Emergency Temporary Standard Reinstated (Vaccine Mandates, Testing & Face Coverings for Large Employers)

The Occupational Safety and Health Administration (OSHA) on November 4, 2021, issued its Emergency Temporary Standard (ETS), requiring all employers with 100 or more employees to choose between (1) implementing a mandatory COVID-19 vaccine policy, and (2) requiring face coverings and weekly testing for the nonvaccinated. That order was to go into effect on December 6, 2021, requiring the development of a policy and gathering proofs of vaccinations by that date, with the testing part taking effect on January 4, 2022. The U.S. Court of Appeals for the Fifth Circuit on November 12 enjoined the ETS from taking effect; and following that order, OSHA stood down on enforcing the ETS. Much litigation followed, with a national consolidation of related cases shifted to the Sixth Circuit Court of Appeals; and that court on December 17 dissolved the order of the Fifth Circuit, reinstating the ETS. 

In response to the Sixth Circuit’s order, OSHA issued a statement:

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

So the old deadlines of December 6 and January 4 have been changed to January 10 and February 9. Of course, the entire Sixth Circuit court can revisit the December 17 order, or an expedited appeal can be taken to the Supreme Court of the United States. The current status quo is that the ETS is in effect; and indeed, almost immediately after the Sixth Circuit issued its order, opponents of the ETS began filing emergency applications with the Supreme Court requesting that it immediately stay the Sixth Circuit’s order.

Now What?

We addressed the substance of the ETS here. So now what? 

As it stands now, employers with 100 or more employees will need to be prepared to comply with the ETS’s shot or test mandates. By January 10, 2022, this includes: 

• establishing a written policy either requiring vaccination of employees (subject to accommodations required by law) or a written policy permitting employees to choose between vaccination or weekly testing and wearing a face covering; and
• determining the vaccination status of each employee and obtaining and maintaining proof of same.

By February 9, 2022, all employees subject to a mandatory vaccine policy must be fully vaccinated, and, if testing is offered, unvaccinated workers must start testing on February 9.

States that have opted out of federal OSHA and have their own state OSH plans will have 30 days to either adopt the ETS or enact their own equally effective standard.

Preemption?

Many state and local governments issued their own laws or guidance for employers regarding vaccine and testing policies for employees. The local laws range from Florida’s expansive law requiring employers that impose a COVID-19 vaccine mandate to allow employees to “opt out” by creating five categorical exemptions that go beyond medical and religious exemptions, to New York City’s mandate that all employers must require vaccination of all workers as a condition of entering the workplace. 

What is the effect of the reinstated ETS on those laws? This is an easy question with a difficult answer. First, some context: The Constitution of the United States has its “supremacy clause,” which states that the “laws of the United States … shall be the supreme law of the land, … anything in the … laws of any State to the contrary notwithstanding.” U.S. Const. art. VI. 

In the employment arena, however, the federal Congress has allowed state and local governments to pass laws that provide greater employee protections and benefits than under some of the federal employment laws: the Fair Labor Standards Act (minimum wage and overtime) (29 U.S.C. § 218(a)); Title VII of the Civil Rights Act of 1964 (nondiscrimination) (42 U.S.C. § 2000e-7); the Age Discrimination in Employment Act 29 U.S.C. § 633(a); and the Americans with Disabilities Act (42 U.S.C. § 12201(b)).

On the other hand, Congress intended complete federal preemption for the federal law regulating employee benefits, the Employee Retirement Income Security Act (ERISA). 29 U.S.C. § 1144. Similarly, the laws pertaining to labor-management relations are exclusively federal under the Labor Management Relations Act, which includes the National Labor Relations Act. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 144 (1990). 

The Occupational Health and Safety Act (OSH Act) has its own preemption scheme. Section 18 of the OSH Act allows states to operate their own occupational safety and health plans. 29 U.S.C. § 667. A state plan must be approved by the U.S. Secretary of Labor and maintain the minimum standards of the OSH Act. Where a state has not adopted its own safety plan that was approved by the U.S. Secretary of Labor, the OSH Act provides:

Nothing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect. (29 U.S.C. § 667(a)) 

While the Fifth Circuit’s order was operative, the ETS was banned; and during that ban, there was no OSHA standard in effect. With the Sixth Circuit’s order, however, there is now (again) an OSHA standard regulating vaccination programs in the workplace that is in effect (but subject to being set aside at any moment). It is our view that the ETS preempts all state and local laws addressing what an employer does regarding vaccinations of its employees, at least with respect to larger employers. OSHA in its FAQ regarding the ETS said as much:

This ETS preempts States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a Federally-approved State Plan. In particular, OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing. State and local requirements that prohibit employers from implementing employee vaccination mandates, or from requiring face coverings in workplaces, serve as a barrier to OSHA’s implementation of this ETS, and to the protection of America’s workforce from COVID-19.

To ensure that the ETS supplants the existing State and local vaccination bans and other requirements that could undercut its effectiveness, and to foreclose the possibility of future bans, OSHA clearly defined the issues addressed by the ETS in section 1910.501(a). OSHA’s authority to preempt such State and local requirements comes from section 18 of OSH Act, and from general principles of conflict preemption. As the Supreme Court has explained, under section 18, once OSHA promulgates federal standards addressing an occupational safety and health issue, States may no longer regulate that issue except with OSHA’s approval and the authority of a Federally-approved State Plan. Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88 (1992); see 29 U.S.C. 667.

There is an open question, which we are continuing to address, and that is whether employers having fewer than 100 employees are bound by state and local laws requiring or prohibiting vaccinations. There is no OSHA standard for those employers. Stay tuned. 

Effect of Other Mandates for Federal Contractors and Healthcare Employers?

The ETS requirements do not apply to “(i) Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors or Subcontractors; or (ii) Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of § 1910.502 (the CMS Vaccine Mandate Rule).” With both of those mandates currently on hold nationwide (for the federal contractor guidance) and in 25 states (for § 1910.502), and things very much in a state of legal flux, it remains unclear whether employers who would be exempt from the OSHA standard due to coverage under one of the other standards might also become subject to OSHA ETS compliance obligations. We will issue further alerts as new information becomes available. 

The Practical View of What to Do

While we wait to see how the Supreme Court will respond to the hastily filed petitions for relief from the ETS, there are actions employers can take now to ensure compliance by the January and February deadlines. Employers with 100 or more employees should finalize those mandatory vaccine policies that they started months ago. The policy should cover vaccines, testing, and face coverings, and determine how it will be enforced. The ETS imposes more requirements than vaccination, including notices to employees and OSHA. In addition, if an employer has not started collecting vaccination status information from its employees, it should do so now. Also, employers should create a process to evaluate requests for disability and religious accommodation requests. Consideration should be given to whether on-site testing should be provided or if employees will be instructed to obtain tests on their own. Along with this, employers should plan to pay nonexempt employees for required testing. Further, employers must be prepared to provide paid time off to employees to obtain the vaccine, and reasonable time and paid sick leave to recover from side effects following each dose.