Federal workplace immigration officials recently announced that “relaxed” I-9 rules have been extended until April 30, 2022, ensuring that employers can inspect I-9 documents for certain employees working remotely due to COVID-19 restrictions by way of camera or fax. U.S. Immigration and Customs Enforcement (ICE) noted that this extension will ensure that the guidance for employees hired on or after April 1, 2021, and working exclusively in a remote setting due to COVID-19-related precautions will remain in place for the next several months. What do employers need to know about this December 15 announcement?
Overview
Employees who qualify for these relaxed rules are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. When an affected employee commences “non-remote employment on a regular, consistent, or predictable basis” the employer must verify the employee’s documentation in person within three business days.
What if the Remote Employee Leaves Employment Before We Have a Chance to Inspect Their I-9 Documents in Person?
In its announcement, ICE also provided the following guidance: “Employers may be unable to timely inspect and verify, in-person, the Form I-9 supporting documents of employee(s) hired since March 20, 2020, . . .in case-by-case situations (such as cases in which affected employees are no longer employed by the employer). In such cases, employers may memorialize the reason(s) for this inability in a memorandum retained with each affected employee’s Form I-9. Any such reason(s) will be evaluated, on a case-by-case basis, by DHS ICE in the event of a Form I-9 audit.”
When a government agency announces a “case by case” policy, this is of little comfort to employers. We suggest that employers err on the side of caution and have remote new hires’ Form I-9 documentation physically inspected by an authorized representative retained by the employer for that purpose, unless COVID-19 restrictions render that option unadvisable.
You should carefully coach authorized representatives on how to correctly fill out page 2 of the I-9, as any errors or omissions will be attributed to the employer. In the alternative, you should monitor remote employees’ visits to the workplace and conduct the in-person follow-up document review as early as possible.
What’s Next?
Given that fines for I-9 errors can run in the thousands of dollars per I-9, the cost of a self-audit is relatively inexpensive, and helps ensure compliance moving forward.
The CDC announced on December 27th that it is updating its quarantine and isolation guidance. For people with COVID-19, the isolation period was reduced from ten days to five days as long as the individual has no symptoms or their symptoms are resolving after five days. Importantly, the revised isolation guidance does not recommend an individual have a negative COVID-19 test before ending their isolation period after day 5.
For people who have been exposed through close contact with someone infected with COVID-19, whether an individual is recommended to quarantine is no longer dependent on vaccination status alone. Rather, whether quarantine is recommended now also depends on whether an individual has received a booster and how long it has been since an individual completed their vaccination series. For people who are unvaccinated or received their second mRNA dose (Pfizer or Moderna) more than 6 months ago or the J&J vaccine more than 2 months ago, and have not received a booster shot, the CDC now recommends quarantine for 5 days, followed by 5 days of masking. For people who have received their booster shot or who have recently completed their primary vaccine series, the CDC does not recommend such individuals quarantine following an exposure, but the CDC does recommend they wear a mask around others for 10 days.
The CDC also recommends that everyone who has been exposed to COVID-19, regardless of vaccination status, be tested on day 5 following the exposure if possible. Finally, everyone who either has COVID-19 or was exposed to someone with COVID-19 should wear a well-fitted mask for a full 10 days.
Employers should review their COVID-19 policies and protocols, communicate any changes to their employees and be prepared to answer employees’ questions. Employers are reminded to consider states and local health authorities which may have different guidelines.
The nation’s highest Court has announced it will step in and rule whether the Biden administration’s aggressive workplace vaccine strategy – including a mandate-or-test rule for larger employers and a strict mandate for certain healthcare organizations – should be temporarily blocked or are permitted to move forward as planned. In a pair of brief orders issued on Dec 22nd, the Supreme Court accepted review of the challenges to both OSHA’s ETS and CMS’s healthcare mandate and announced that oral argument will be held for both cases on January 7th. So what should you be doing in the meantime? Here is a review of what has happened, along with a five-step survival guides for employers subject to either the OSHA ETS or the CMS mandate.
Brief Overview and Recap
There are two rules at play here: a general ETS issued by OSHA that covers employers with over 100 workers and the CMS’s Healthcare Mandate which is specific to the healthcare industry. Whereas OSHA’s general ETS provides an option for employers to test employees for COVID-19 at least weekly in lieu of mandating the vaccine, the CMS mandate does not allow for a testing option and requires a vaccination policy.
General OSHA ETS
After workplace safety officials at the Occupational Safety and Health Administration (OSHA) unveiled the mandate-or-test ETS on November 4, many groups opposing the rule filed actions in several federal courts to block the rule. The conservative Fifth Circuit Court of Appeals was the first to act by issuing a temporary “stay” that preliminarily blocked the ETS. This was followed by a November 12 extension of that stay which ordered OSHA to take no steps to implement or enforce the ETS.
But the Judicial Panel of Multidistrict Litigation announced on November 16 that it would consolidate all of the legal challenges and send them to the conservative Sixth Circuit Court of Appeals to decide the outcome of the rule. Then, on December 17, a surprise decision from a three-judge panel of the Sixth Circuit once again jolted employers back into scramble mode, as the court dissolved the stay and cleared OSHA to enforce the ETS across the country.
CMS Healthcare Mandate
The history and procedural status of the healthcare vaccine mandate are a bit messier. In early November, the Centers for Medicare & Medicaid Services (CMS) published a vaccine mandate, requiring all employees of healthcare facilities participating in Medicare and Medicaid – more than 17 million workers – to be fully vaccinated by January 4. Then, a pair of federal court decisions issued in late November blocked the mandate. First, on November 29, a federal judge in Missouri temporarily blocked the agency from enforcing the mandate in 10 states. And then, on November 30, a Louisiana federal court took one giant step further and blocked the rule from taking effect in any healthcare facility across the country that was not already covered by the Missouri decision.
Serving up yet another curveball for healthcare employers, the Fifth Circuit Court of Appeals effectively reactivated the CMS vaccination mandate with a surprise decision on December 15 – but only for employers operating in nearly half of the country. And that’s where things stand now. You can review this most recent Insight for a list of states where the CMS mandate has been kept alive and a list of states where the CMS mandate is currently blocked.
What Happened Yesterday?
While the orders from SCOTUS were brief and to the point, three significant takeaways can be gleaned from the announcements:
What Should You Do? 5-Step Survival Guides
To demonstrate reasonable good faith efforts to comply between now and January 10, 2022, employers subject to the OSHA ETS should follow this five-step game plan:
If you are subject to the CMS healthcare mandate, the following five steps, described in further detail here, are critical parts of a successful plan:
Conclusion
We will continue to monitor this litigation and provide updates as warranted.
The IRS just released IRS Notice 2022-04 that provides the updated fee for Patient-Centered Outcomes Research Institute (PCORI) paid by fully insured and self-funded health plans for the upcoming tax reporting period.
Even though the original PCORI fee assessments under the Affordable Care Act were scheduled to end after September 30, 2019, Congress extended these fees to be assessed by the IRS under the Further Consolidated Appropriations Act of 2020 for another ten years, until at least September 30, 2029.
The updated PCORI fee is now $2.79 per covered life for all plan years ending on or after October 1, 2021, and before October 1, 2022, up from $2.66 for the prior period. As a reminder, fully insured plans are to be assessed the applicable PCORI fee amount through their monthly premium payments made to their health insurance carrier. Self-insured plans pay this fee as part of the annual IRS Form 720 filing due by July 31 of each year.
The U.S. Court of Appeals for the Sixth Circuit has lifted the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing for employers with at least 100 employees.
Multiple parties, including 27 states, have filed emergency motions with the U.S. Supreme Court to block the ETS.
In an opinion authored by Judge Jane B. Stanch, a three-judge panel determined in a 2-1 vote that, in light of the continued spread of COVID-19 variants, OSHA “must be able to respond to dangers as they evolve.” Judge Stanch was appointed to the bench by President Barack Obama. She was joined by Judge Julia Smith Gibbons, an appointee of President George W. Bush. Judge Joan Larsen, an appointee of President Donald Trump, dissented, noting employees are exposed to COVID-19 even while not working and OSHA had not established there was “grave danger” in the workplace or the ETS requirements would correct that.
OSHA quickly announced that it will not issue citations for noncompliance before January 10, 2022. The agency also stated it will exercise its discretion and not issue citations for noncompliance with testing requirements under the ETS before February 9, 2022, if an employer is exercising reasonable, good faith efforts to come into compliance with the standard.
The ETS includes face covering requirements, a written policy, collection of proof of vaccination, creation of a vaccination status roster, removal of COVID-19 positive or untested employees from the workplace, maintenance of employee medical records, and certain employee communications about the employer’s policies and vaccine information from the Centers for Disease Control and Prevention. Covered employers will need to decide whether to adopt a mandatory vaccination policy, subject to reasonable accommodations and required exemptions, or a vaccination or weekly test policy. Covered employers implementing a mandatory vaccination plan still must comply with all other requirements, such as weekly testing for employees who are excused from the mandate as a reasonable accommodation.
None of the 22 approved State Plans covering private employers have taken steps to enact an ETS, but they are required to notify OSHA of their intentions to do so within 15 days of promulgation of the standard, and to act within 30 days. In addition, California’s Cal/OSHA has approved revisions to the state’s existing COVID-19 emergency temporary standard. It is unclear whether it will take further action now with respect to the OSHA ETS. It is also unclear whether the Fifth Circuit stay that was in effect until December 17 tolls the deadlines for OSHA State plan adoption deadlines. The ETS has immediate effect in the other 29 states and territories, albeit with the new enforcement delays.
Employers in states and localities that prohibit or restrict vaccination or face covering requirements must be mindful of state and local laws, ordinances, and executive orders that might limit the employer’s ability to require vaccination or otherwise conflict with ETS requirements, particularly if an employer opts for the ETS’s mandatory vaccination policy. While the Sixth Circuit lifted the stay, it has yet to decide the case on the merits, including arguments over whether the ETS overrides state or local laws due to federal preemption. Significantly, Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia have enacted measures that would restrict or impact vaccination requirements. Some of these states are OSHA State Plans and some are actually federal OSHA jurisdictions, creating additional compliance confusion.
Several petitioners have already appealed to the U.S. Supreme Court to stay enforcement of the ETS, emphasizing the irreparable harm they will suffer in having to implement the ETS and providing supporting witness declarations. They continue to argue irreparable harm based on labor shortages, the unavailability of tests and unintended (and ironic) consequences of laying off vaccinated workers to financially support compliance. In addition to the challengers’ concerns about the economic viability of their businesses, they argue their likelihood of success in enjoining the standard on the merits and balance of equities weigh in favor of a stay.
Emergency appeals, such as the request for a stay of a ruling by a Circuit Court, go directly to a justice assigned to that Circuit — in this case, to Justice Brett Kavanaugh, who is assigned to the Sixth Circuit. The assigned justice may distribute the application to the full court to consider or decide the request on their own. Just a few months ago, Justice Amy Coney Barrett rejected an emergency request made by a group of Indiana University students seeking to block enforcement of the school’s vaccine mandate after the Seventh Circuit refused to enjoin the mandate. Justice Barrett did not refer the emergency application to the full Supreme Court and did not provide an explanation in the denial of the petitioners’ request.
If you have questions or need assistance on the OSHA ETS, please reach out to AAG for guidance.
The draft instructions for the Forms 1094-C and 1095-C for the 2021 reporting season were released in late September 2021 with subtle, but important changes. To an untrained eye, these changes may fly under the radar. However, for the first time since the Affordable Care Act’s (ACA’s) inception, employers who file incorrect or incomplete Forms 1095-C with the IRS may suffer costly penalties. The remainder of this article will explore the changes made in the draft instructions for the Forms 1094-C and 1095-C in 2021.
The 2020 instructions to the Forms 1094-C and 1095-C included language that asserted no penalty would be imposed under IRC sections 6721 or 6722 for incorrect or incomplete Forms 1095-C so long as the employer showed that it made good-faith efforts to comply with the information reporting requirements. Similar language has been included in Notices released by the IRS that correspond to all the ACA reporting seasons to date. However, Notice 2020-76, the Notice that extended the good-faith efforts relief for the 2020 reporting season and was incorporated into the final instructions for the Forms 1094-C and 1095-C in 2020, stated that the good-faith efforts relief would not continue for tax reporting seasons past 2020.
As a result of the good-faith efforts relief no longer applying, if an employer submits a Form 1095-C to the IRS or furnishes a Form 1095-C to an employee that is incorrect or incomplete, the employer could be penalized $280 per return. It should be noted that this penalty would apply twice to the same Form 1095-C, once for the Form 1095-C that is furnished to the employee and once for the Form 1095-C that is submitted to the IRS for a total of $560.
The chart below details the cost an employer could incur depending on the percentage of its Forms 1095-C that are filed incorrectly or incompletely. While the chart only discusses the penalty under IRC section 6721, if the IRS were to aggressively penalize an employer, the penalty could be doubled by the IRS by utilizing the penalty under IRC section 6722. The column labeled “# of Forms 1095-C” states the number of Forms 1095-C filed by the employer. The columns labeled with a “x%” state the presumed number of Forms 1095-C that are hypothetically filed incorrectly or incompletely. The dollar figure in the chart states the hypothetical penalty.
| # of Forms 1095-C | 1% | 3% | 5% | 10% | 15% | 20% | 25% |
|---|---|---|---|---|---|---|---|
| 100 | $280 | $840 | $1,400 | $2,800 | $4,200 | $5,600 | $7,000 |
| 1,000 | $2,800 | $8,400 | $14,000 | $28,000 | $42,000 | $56,000 | $70,000 |
| 2,500 | $7,000 | $21,000 | $35,000 | $70,000 | $105,000 | $140,000 | $175,000 |
| 5,000 | $14,000 | $42,000 | $70,000 | $140,000 | $210,000 | $280,000 | $350,000 |
| 10,000 | $28,000 | $84,000 | $140,000 | $280,000 | $420,000 | $560,000 | $700,000 |
| 25,000 | $70,000 | $210,000 | $350,000 | $700,000 | $1,050,000 | $1,400,000 | $1,750,000 |
| 50,000 | $140,000 | $420,000 | $700,000 | $1,400,000 | $2,100,000 | $2,800,000 | $3,500,000 |
As the chart above displays, an employer who submits 1,000 Forms 1095-C to the IRS with 10 percent of the Forms 1095-C being incorrect could be subject to a penalty of $28,000 under IRC section 6721. Additionally, that employer could be subject to a separate $28,000 penalty for furnishing incorrect Forms 1095-C to employees under IRC section 6722. Many employers and service providers in the ACA space have submitted Forms 1095-C to the IRS that have a much higher error rate than 10 percent in previous years. Consequently, it is easy to envision staggering penalties under IRC sections 6721 and 6722 if the IRS stringently enforces these penalties. As a result, employers must be confident that the information reported to the IRS on the Forms 1094-C and 1095-C is complete, meticulous and error free in order to avoid IRS penalties.
Additionally, for the first time in ACA reporting history the IRS appears set on keeping the deadline of January 31, 2022 to furnish the Forms 1095-C to employees. The 2021 draft instructions provide guidance on how an employer can request a 30 day extension. This extension is not automatically granted and therefore should not be relied upon by employers.
Two other small changes were made in the draft instructions to the Forms 1094-C and 1095-C. First, the maximum penalty under IRC sections 6721 and 6722 increased from $3,392,000 in 2020 to $3,426,000 in 2021. Second, two new codes were added for individual coverage health reimbursement arrangements (ICHRAs). Each new code involves employers who offered ICHRAs to the employee and the employee’s spouse.
Code 1T – Individual coverage HRA offered to employee and spouse (no dependents) with affordability determined using employee’s primary residence location ZIP code.
Code 1U – Individual Coverage HRA offered to employee and spouse (not dependents) using employee’s primary employment site ZIP code affordability safe harbor.
Since both new codes deal with ICHRAs and both should never be used, as the new codes do not offer coverage to dependent children, these new codes will have little impact on employers. Any employer who is using an ICHRA as part of their ACA strategy should be utilizing codes 1M, 1N, 1P, or 1Q depending on who in the employee’s family is eligible to utilize the ICHRA.
We anticipate the final instructions will be released any week with minimal, if any, changes compared to the draft instructions. While it is still possible the IRS may release a Notice extending the good-faith efforts relief to 2021 reporting and extend the due date to furnish the Forms 1095-C to full-time employees, employers should not rely on such a Notice this year. As a result, it is essential that employers make sure that every line 14 and 16 code combination submitted to the IRS is error free.
During a special legislative session, Florida just passed a new law banning private employers from mandating COVID-19 vaccines unless several exemptions are offered to employees. The law, signed by the governor on 11/18/21, comes as OSHA’s national emergency temporary standard mandating vaccines is embroiled in legal challenges. What do Florida employers need to know about this new law, which takes effect immediately?
Who is Covered and What Does It Do?
The law applies to all private employers in Florida, regardless of size. It prohibits those employers from requiring employees to get vaccinated against COVID-19 unless various exemptions are offered.
What are the Exemptions?
Some of the exemptions in the new law will sound familiar to employers. Others are unique. If an employer receives a statement from an employee (as described below), they must allow the employee to opt-out of the vaccine mandate. The Department of Health will be creating template forms for each of these exemptions.
This includes for reasons of pregnancy or anticipated pregnancy. To receive a medical exemption, an employee must submit a signed statement by a physician or physician assistant that vaccination is not in the best interest of the employee. While not addressed in the legislation, we suspect that this exemption will function similarly to those provided for disabilities under the Americans with Disabilities Act (ADA).
An employee must present a statement that they decline the vaccine because of a “sincerely held religious belief.” Although that term is undefined, it likely refers to sincerely held religious beliefs as understood under federal lawA.
An employee must show “competent medical evidence” that they have immunity to COVID-19, which is documented by the results of laboratory testing on the employee. The law does not state what “immunity” is but directs the Department of Health to establish a standard for determining that immunity.
An employee must provide a statement indicating that they will comply with the employer’s requirement to submit to regular testing. Although “regular testing” is not defined, the law directs the Department of Health to adopt emergency rules specifying requirements for frequency of testing. Importantly, any testing must be at no-cost to the employee.
Because this exemption has no ties to existing federal law such as Title VII and the ADA, and the law does not address any “undue hardship” defense, it is likely that an employer cannot decline to pay for the testing if there is a charge the employee would otherwise incur.
An employee must present a statement that they agree to comply with the employer’s reasonable written requirement to use employer-provided personal protective equipment when around others. “Personal protective equipment” is not defined. It is unclear whether the use of the term would implicate OSHA regulations or CDC guidance on “personal protective equipment.”
But What About Federal Law?
The CMS Rule and Federal Contractor vaccine mandate requirements, which both require that covered staff be vaccinated and only allow for exemptions for medical conditions (ADA) and sincerely held religious beliefs (Title VII), should preempt this Florida law to the extent the laws directly conflict. The CMS Rule explicitly provides that it preempts state and local laws.
If OSHA’s ETS survives in the courts, it is likely that Florida’s new law will conflict with the OSHA ETS at least in so far as an employer (with 100 or more employees) might want to implement a mandatory vaccination policy instead of allowing employees to choose to be vaccinated or undergo weekly testing. However, the scope of that conflict is unknown and will depend on the final terms of the ETS if it survives.
How is the Law Going to be Enforced?
Florida’s vaccine mandate law will be enforced by the Department of Legal Affairs, in the Attorney General’s office. Employees can file complaints that an exemption was not offered or was improperly applied or denied, which will then be investigated. If the Department finds a violation, it must notify the employer of its determination and allow the employer the opportunity to cure the noncompliance. If the Department finds that an employee was improperly terminated and the employer does not restore the employee to their position with back pay, then the Department may fine the employer up to $50,000, depending on employer size and other factors. Employees who are wrongfully terminated may also be entitled to unemployment benefits. The Department of Legal Affairs will be issuing rules to further flesh out the complaint and investigation process.
What We Don’t Know Yet
There are many unanswered questions. For example, the new law does not address workers’ compensation claims and remains an open question whether an employee’s side effects to a mandated vaccine is covered by workers’ compensation.
What About Public Employers or Schools?
The legislature also passed statutes banning vaccine mandates for public employees and prohibiting any public educational institution or elected or appointed local official from imposing a COVID-19 vaccination mandate for any student. Unlike private sector employers, public sector employers are prohibited from mandating the vaccine — even if they offer the enumerated exemptions.
There are also provisions prohibiting public schools from requiring a student to wear a face mask, a face shield, or any other facial covering. Instead, such issues are left to the parent’s sole discretion. Further, the law prohibits public schools from barring any student or employee from school or school-sponsored activities or subjecting them to other disparate treatment based on an exposure to COVID-19, so long as the student or employee remains asymptomatic and has not received a positive test for COVID-19.
What Employers Can Do
Importantly, the law is not an outright prohibition on vaccine mandates. Private employers can still have a vaccine mandate, so long as you offer the various exemptions discussed above.
Neither does the law prohibit employers from “stacking” their COVID-19 prevention and mitigation efforts. Meaning, for example, you likely can still require both use of PPE and regular testing in order to protect its workforce. In other words, the statute is a ban on vaccine mandates without certain opt-out accommodations, but it is not a ban on your organization opting to require testing and/or continued use of PPE.
It is worth noting that this new law does not address employers’ immunity against COVID-19 claims. In March 2020, Florida passed a law granting businesses immunity from COVID-19 claims. Absent any more specific legislation, if an employer meets the standards of the immunity law (specifically, demonstrating good faith effort to comply with government-issued health guidance), the language of the immunity law is clear that the employer is immune from civil liability. This new law does not affect that.
You should also keep an eye out for the implementing rules to be issued by the various state agencies. According to the statute, such rulemaking must occur initially by filing emergency rules within 15 days after the effective date of the statute, followed by regular rulemaking thereafter. For the next 15 days (unless the Department of Health files its emergency rules earlier), employer COVID-19 vaccination mandates are deemed invalid under this statute.
What’s Next?
This new law is yet another issue facing employers, who are increasingly confronting a myriad of conflicting orders at the state and federal levels. Unfortunately, the issue of COVID-19 vaccines in the workplace remains incredibly fluid and will surely continue to evolve through the holiday season. As always, we will continue to monitor the situation regarding employers’ vaccine mandates and provide updates as warranted.
The IRS has released the 2022 contribution limits for FSA and several other benefits in Revenue Procedure 2021-45. The limits are effective for plan years that begin on or after January 1, 2022.
Citing potential “grave statutory and constitutional issues” with the mandate-or-test emergency vaccine rule unveiled by OSHA on Thursday (11/4/2021), a federal appeals court just issued an order blocking the ETS from taking effect on a nationwide basis. That the ETS faced immediate litigation from opponents and was at least temporarily sidelined should come as little surprise – many law firms predicted an onslaught of legal challenges well before this move took place. The bigger question left in the wake of Saturday’s legal order: what should employers do now?
What Happened?
As every employer should know by now, the Occupational Safety and Health Administration (OSHA) published a mandate-or-test Emergency Temporary Standard (ETS) late last week which will soon require all covered employers with 100 or more employees to either mandate their workforce receive the vaccination against COVID-19 or test them weekly to ensure they are not infected.
On Friday (11/5/21), a number of parties – including a management company, multiple supermarkets, and several individuals – filed suit in the Court of Appeals for the Fifth Circuit challenging OSHA’s ETS the day it came into effect. A quirk in the way OSHA’s emergency standards can be challenged allows opponents to bypass the lower courts and go directly to a federal Court of Appeals. The Fifth Circuit challenge is not alone; similar cases have also been filed in the Sixth, Seventh, Eighth, and Eleventh Circuits.
The Fifth Circuit petition asked the Court to find the ETS either exceeded the scope of OSHA’s authority or that it was unconstitutional. The challengers also pleaded with the Fifth Circuit to “stay” – or temporarily stop – enforcement of the ETS until it could be reviewed by the courts.
Within 24 hours, the Fifth Circuit issued a brief order staying the ETS until it could be fully reviewed by the Court. The order was extremely terse, stating that “the petitions give cause to believe there are grave statutory and constitutional issues” with the ETS (perhaps purposefully mimicking the claim by OSHA that “grave” danger exists such to justify the emergency rule).
What’s Next?
The Fifth Circuit instructed the government to respond to the request for a permanent injunction by 5:00pm on Monday, November 8, and allowed the challengers to reply to the government’s response by 5:00pm on Tuesday. This means it is possible that we will hear a final decision from the Fifth Circuit in the very near future.
We will probably see further rulings in the coming days and weeks from other federal appeals courts as well, some following in the Fifth Circuit’s footsteps and blocking the ETS, others ruling that the ETS stands on solid legal footing. With a patchwork of various legal rulings expected, there will ultimately be a unifying judicial order having the final say on this matter. Whether that ruling comes from the multidistrict litigation panel (an assembly of federal judges that manages certain kinds of national litigation spanning several jurisdictions) or the U.S. Supreme Court remains to be seen.
Where Does This Leave Employers?
At the moment, the outcome of the OSHA ETS is uncertain. While OSHA must refrain from enforcing the ETS until the Fifth Circuit says otherwise, this could change in the blink of an eye if a full panel of appeals court judges removes the stay. And again, with several separate lawsuits filed in different courts challenging the ETS, it is likely that a final binding and unifying determination will not be made for weeks or even months.
What Should You Do?
As of right now, an employer’s best course of action is to familiarize yourself with the requirements of the OSHA ETS and prepare to implement those requirements if the stay is lifted and the emergency rule is revived. After all, OSHA will most likely have little patience with non-compliant employers who claim they held off implementing the mandate-or-test rule while awaiting a final court ruling – and the agency has significant weapons at its disposal in the form of citations and penalties for those not following the ETS edicts.
Employers should spend the coming weeks preparing for the ETS as if it will take effect but waiting to implement its measures until the final judicial outcome is certain. The earliest effective date for any of the ETS requirements is December 5, which includes the need for you to have a vaccination policy and various other technical standards in place. You will be hard pressed to develop these materials overnight, so spend this interim limbo time efficiently and be prepared to comply should the ETS ultimately be upheld.