Supreme Court Blocks Vaccine Mandate for Large Employers

Supreme Court Set to Resolve Vaccine ETS and Healthcare Mandate: What Employers Should Do Until Decision is Reached

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:

1. First and foremost, the Supreme Court agreed to entertain challenges to both rules. That in and of itself is significant. While many might believe that the nation’s highest Court must render a definitive ruling in this matter, its decision to accept review of the challenges was far from certain. In fact, many observers thought the Court might even duck the cases and avoid wading into what is sure to be perceived as a political dispute. At the very least, employers can take some solace in knowing that we will soon have a decisive answer about the immediate enforceability of both vaccine rules.
2. Second, the Court rejected the chance to block the rules pending the outcome of their final rulings. The slew of challenges filed with SCOTUS not only asked the justices to fast-track the matter but also to pause the rules while the appeal was being decided. The Court declined to do so, keeping the rules alive for the time being.
3. Third, by setting the oral argument for January 7, the Court has essentially forced employers to invest time and resources in preparing their compliance efforts. In the case of the general OSHA ETS, the first compliance deadline is January 10 – and employers not preparing in “good faith” could actually feel an enforcement sting before that date according to recent guidance from OSHA. Of course, there’s no telling when the Court will rule on the ETS, but even if it issued a decision immediately after oral argument, that would leave precious little time for employers to comply and demonstrate good faith before January 10 – meaning you need to prepare now. And for those healthcare employers subject to the CMS mandate in about half the country, the deadline for full compliance still appears to be the January 4 date to aim for (because the agency has still not provided any further clarification about deadlines despite the appeals court rulings described above). This means that you need to keep that deadline in mind and operate under the presumption that the Court will uphold the mandate.

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:

1. Are You Covered? Determine if you are covered by the ETS. Work with your workplace safety counsel to answer the following questions: Is your workplace covered by OSHA normally? If so, do you have more than 100 employees nationwide? Or are you exempt because you are covered by either the Healthcare COVID-19 ETS or Federal Contractor mandate? (More on this below).
2. Check Vaccine Status. If you are covered, gather vaccine status information on your workforce and develop the required vaccination roster for employees, noting whether or not they are fully vaccinated as defined under the ETS. This information (the percentage of vaccinated workers) will allow you to determine if you will mandate vaccines or conduct testing under the ETS.  
3. Choose: Vaccine Mandate or Test? Depending on your decision, develop the required mandatory vaccine and/or testing/masking policies required under the ETS – and make sure they are adapted to your own unique workplace. While you don’t necessarily need to implement these policies before January 10, you should be ready to implement them as soon as possible and be prepared to demonstrate good faith efforts to put them into place. Of course, if your organization has low risk tolerance, you could proceed with implementing the policies before January 10. Employers in OSHA “state plan” states face the further complication of needing to wait for states to adopt the ETS – OSHA told state plans yesterday that they will need to act by January 24 to adopt the ETS or otherwise ensure that their state plans are “as effective” as the federal rule. The ETS will generally not be effective in state plan states until they do so.  
4. Compliance Training. Develop programs that would allow you to conduct compliance training for your managers and deliver information about your policies to your employees as required under the ETS. You may want to conduct this training and start your informational campaign before the January 10 deadline to further demonstrate your good faith efforts.
5. Testing Proof. If you decide to provide the COVID-19 testing option, then in addition to implementing the above requirements by January 10 you should be prepared to have unvaccinated employees demonstrate proof of a negative test as of February 9.

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:

1. Safeguard Information. Adopt systems and procedures to determine and safeguard all information regarding employees’ vaccination status;
2. Communicate Policies. Communicate applicable policies and procedures to everyone who may work on-site, including but not limited to the particulars of your vaccine requirement and the process for requesting exemptions;
3. Accommodation Requests. Develop a non-discriminatory, streamlined process to handle vaccine accommodation requests;
4. Accommodation Precautions. Review and confirm additional COVID-19 precautions that apply to individuals who are granted accommodations; and
5. Prepare for Pushback. Prepare to respond to some inevitable pushback and complaints, as well as likely on-site CMS inspections, by communicating clearly and maintaining detailed records of your processes.

Conclusion

We will continue to monitor this litigation and provide updates as warranted. 

Sixth Circuit Dissolves Stay of OSHA COVID-19 Vaccine ETS

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. 

Florida Passes Legislation Banning Vaccine Mandates: What Employers Need to Know

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.

1. Medical Reasons

   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).

2. Religious Reasons

   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.

3. COVID-19 “Immunity”

   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.

4. Periodic Testing

   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.

5. Agreement to Use PPE

   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. 

Federal Appeals Court Blocks OSHA’s Mandate-or-Test Emergency Vaccine Rule: What Does This Mean for Employers?

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. 

OSHA Issues ETS Requiring COVID-19 Tests or Vaccinations for Most Employers

The ETS places additional burdens on employers (and employees) already straining under workforce shortages, supply chain issues, and varying standards and guidance related to COVID-19. The ETS is expected to face multiple legal challenges.

Employers Covered

The OSHA ETS applies to employers with at least 100 employees company-wide.

It does not apply to:

• Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or
• Settings where any employee provides healthcare services or healthcare support services when subject to the Emergency Temporary Standard for healthcare employers (Subpart U – 29 CFR §1910.502).

The ETS also does not apply to the employees of covered employers:

• Who do not report to a workplace where other individuals, such as coworkers or customers, are present;
• While working from home; or
• Who work exclusively outdoors.

At any time during the duration of the ETS, if an employer employs at least 100 workers, the requirements of the ETS will apply regardless of fluctuations in the size of the employer’s workforce.

Required Policy

OSHA’s ETS requires employers who have at least 100 employees (company-wide, not just at one facility) to institute either a mandatory vaccine policy or a weekly testing and mask policy.

Employers must inform employees of their policies and procedures designed to comply with the ETS, the Centers for Disease Control and Prevention’s “Key Things to Know About COVID-19 Vaccines,” OSHA’s prohibition against retaliation for reporting workplace illnesses or injuries and OSHA’s whistleblower protections, and the criminal penalties associated with knowingly supplying false statements or documentation.

Vaccination Exceptions Allowed in a Mandatory Vaccination Policy

If an employer adopts a mandatory vaccination policy to comply with the OSHA ETS, it must require vaccination of all employees (and of all new employees as soon as practicable), other than those:

• For whom a vaccine is medically contraindicated;
• For whom medical necessity requires a delay in vaccination; or
• Who are legally entitled to a reasonable accommodation under federal civil rights laws, because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

How is Vaccination Status Determined?

The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.

Acceptable proof of vaccination status is:

• The record of immunization from a healthcare provider or pharmacy;
• A copy of the COVID-19 Vaccination Record Card;
• A copy of medical records documenting the vaccination;
• A copy of immunization records from a public health, state, or tribal immunization information system; or
• A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
• Where an employee is unable to produce acceptable proof of vaccination (as outlined above), a signed and dated statement by the employee:
  • Attesting to their vaccination status (fully vaccinated or partially vaccinated);
  • Attesting that they have lost and are otherwise unable to produce proof required by this section; and
  • Including the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
  • An employee who attests to their vaccination status, to the best of their recollection, should include the following information in their attestation: the type of vaccine administered; date(s) of administration; and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

What Records Must Be Maintained?

According to the OSHA ETS, the employer must maintain a record of each employee’s vaccination status. The employer must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, along with a roster of each employee’s vaccination status. Significantly, employers that have already ascertained vaccination status prior to the effective date of the ETS through another form, attestation, or proof and retained records, are exempted from re-determining the vaccination status of individuals whose fully vaccinated status has been previously documented.

In addition, the employer must maintain a record of each test result provided by each employee.

These records and roster are considered employee medical records and must be maintained as such records. They must not be disclosed except as required or authorized by federal law. These records and roster must be maintained and preserved while this section remains in effect, but are not subject to OSHA’s standard 30-year retention requirement.

Paid Time Off for Vaccine Time

According to the ETS, employers must provide paid time off for employees to get vaccinated (up to four hours) and to recover from any side effects. The ETS requires up to four hours of paid time to receive each dose of the vaccine, including travel time, at the employee’s regular rate of pay. The ETS requires “reasonable time and paid sick leave” to recover from the side effects of each dose of the vaccine.

Who Pays for Testing?

OSHA permits employers to pass the expense for testing to employees, subject to the requirements of other laws.

Whether employers can require employees to pay for their own tests will depend on state law and whether testing is offered as a reasonable accommodation. Many states have laws requiring employers to pay the cost of any required medical exams or tests or expense reimbursement laws, which may be implicated.

The Fair Labor Standards Act (FLSA) and state law will govern whether employers have to pay for the time associated with getting testing and awaiting results.

It is also unclear at this time whether, under the FLSA, the cost of testing may drop an employee’s effective rate of pay below the federal minimum wage.

Conflicting State Law?

Although some states have their own state OSHA plans, such plans generally must be “at least as effective as” the standard set by OSHA. In those states, the federal OSHA ETS will not apply immediately. 

There are currently 22 states that have OSHA-approved State Plans regulating private sector employers. (Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Tennessee, South Carolina, Utah, Vermont, Virginia, Washington, Wyoming, and Puerto Rico.) Those states have 30 days to adopt the federal standard or inform OSHA of their plans to do something else. In addition to their own OSHA plans, some states have passed laws prohibiting or limiting employers’ ability to require COVID-19 vaccines.

OSHA’s ETS is intended to comprehensively address the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19. It, therefore, preempts any state or local requirements on these issues, except those from an OSHA-approved State Plan. Thus, the ETS preempts any state or local requirements banning or limiting an employer from requiring vaccines, face coverings, or testing.

What Type of Tests are Required?

According to the OSHA ETS, the COVID-19 test must be:

• Cleared, approved, or authorized, including in an Emergency Use Authorization, by the Food and Drug Administration to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
• Administered in accordance with the authorized instructions; and
• Not both self-administered and self-read, unless observed by the employer or an authorized telehealth proctor.

Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens that are processed individually or as pooled specimens), proctored over-the-counter tests, point-of-care tests, and tests where specimen collection and processing is done or observed by an employer.

When Must Testing Occur?

Employees who are not fully vaccinated must submit to testing at least weekly if present 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.

For individuals who have received a positive COVID-19 test or who have been diagnosed with COVID-19, the ETS provides an exception from testing for the 90-day period following the positive diagnosis or test.

Employees who are not fully vaccinated and do not meet the testing requirements must be removed from the workplace pending a test result.

Removal for Positive Tests

Regardless of vaccination status, employees who test positive for COVID-19 or who are diagnosed with COVID-19 must be removed from the workplace until they meet certain return-to-work criteria. The ETS does not require paid leave for employees who are removed, but acknowledges that other laws may impose such obligations.

What Other Requirements Apply?

Masking: Subject to limited exceptions, employers are required to enforce the wearing of masks for those who are unvaccinated when indoors and when occupying a vehicle with another person for work purposes. Like testing costs, the ETS does not mandate employers to pay for face coverings required by the ETS.

Reporting: Employers are required to report work-related COVID-19 hospitalizations and fatalities to OSHA (within 24 hours of hospitalization and eight hours of a fatality). Under OSHA’s normal reporting standards, work-related hospitalizations and fatalities must be reported only if they occur within a certain time period following the work-related incident (24 hours for hospitalization and 30 days for a fatality). Those time periods do not apply to work-related COVID-19 hospitalizations or fatalities, meaning, employers must still notify OSHA even if the hospitalization or fatality occurs after those time periods.

Notice: Employers must require employees to provide prompt notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.

When Does the ETS Take Effect?

The OSHA ETS takes effect immediately, except in those states that have their own state plans. However, employers have 60 days to comply with the testing requirements of the ETS and 30 days to comply with the remaining provisions. State plan states have 30 days from the effective date to adopt the federal standard or inform OSHA of their plans to do something else.

President’s Path Out of the Pandemic Adds Hurdles for Employers

On September 9, 2021, the White House issued Path Out of the Pandemic: President Biden’s COVID-19 Action Plan (the Plan). The Plan outlines a six-pronged approach, portions of which will impose new obligations on employers across the country.

Most notably for employers, the first prong of the Plan, “Vaccinating the Unvaccinated,” includes:

• Direction to the Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees to ensure that all employees are fully vaccinated or able to produce a negative COVID-19 test result on at least a weekly basis;
• A new Executive Order that requires certain government contractors to comply with guidance, to be published later this month by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance), which presumably will require that employees who work on or in connection with certain government contracts be vaccinated, regardless of whether they work on a federal site;
• A statement that the Centers for Medicare & Medicaid Services (CMS) will be taking action to require COVID-19 vaccination for workers in most health care settings that receive Medicare or Medicaid reimbursement as a condition of Medicare/Medicaid reimbursement (similar to what was previously announced by the President in August 2021 for nursing homes); and
• Direction to OSHA to require covered employers to provide paid time off for employees to get vaccinated or recover from vaccination.

The Plan also calls on states to adopt vaccination requirements for all school employees as part of the effort to “keep schools safely open.”

The Plan indicates that the administration will increase the amount of COVID-19 testing by ramping up production of testing products, offering at-home rapid COVID-19 tests at cost through certain retailers, and expanding free testing at retail pharmacy sites, among other things.

While the Plan is far-reaching, there are still many unknowns. Employer obligations arising from OSHA’s ETS will be dictated by the timing and the specific ETS provisions and corresponding requirements. The only thing we know for certain about the forthcoming ETS is that employers will need to continue to adapt and be prepared to pivot if necessary.   It is also unclear how the new ETS will fit in with OSHA’s current COVID-19 Healthcare ETS, in 29 C.F.R. 1910 Subpart U, or impact OSHA’s current guidance for non-healthcare employers. Further, the 27 states with OSHA-approved State Plans, such as California, Washington, Oregon, and Virginia, will need to determine how to respond to the ETS, once it is issued, and if certain provisions require implementation alongside the state’s standards and regulations.

CMS also issued a press release urging Medicare and Medicaid-certified facilities to “make efforts now to get health care staff vaccinated.” However, the agency noted that it is still developing an Interim Final Rule with Comment Period that will be issued in October.

Employers who are impacted by the Plan, and who may be impacted by an ETS once issued, are advised to start thinking through how they will navigate many legal issues and operational challenges related to required vaccination and testing. These issues include policy requirements, workplace testing strategies, vaccination tracking and management, medical record collection and retention, and accommodations for religion, disability and pregnancy, as well as wage and hour implications, bargaining obligations for unionized workplaces, employee confidentiality and privacy issues. Further, employers should consider the logistical impact on federal contracts and how these obligations will interplay with other state or local mandates or restrictions on vaccinations.

Stay tuned as we dive into the Plan and corresponding guidance documents, as well as await further information from federal agencies responsible for complying with the Plan and its directives. 

CDC Reverses Course and Recommends Fully Vaccinated Individuals in “Substantial” and “High” Transmission Areas Continue to Wear Masks

The U.S. Centers for Disease Control and Prevention (CDC) announced yesterday that the agency now recommends that people in areas with “substantial” and “high” COVID-19 transmission should wear masks indoors, regardless of vaccination status. This announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. The updated guidance comes on the heels of what some call the third (or fourth) surge of COVID-19 infections due to the highly transmissible Delta variant, which CDC Director Dr. Rochelle Walensky indicated behaves “uniquely differently” from prior virus strains. While Director Walensky stressed that the vast majority of severe illness and death is among unvaccinated people, she also indicated data shows breakthrough infections can happen in 1 out of 10 vaccinated individuals in a “substantial” or “high” transmission area.  So what does this mean for employers and your masking policies?

What Has Changed and Why?

The announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. Since then, new data shows the Delta variant is more transmissible than earlier strains of COVID-19, with those infected with the Delta variant carrying the same viral load as unvaccinated individuals with COVID-19.

Indeed, the CDC indicates while most COVID-19 transmission occurs in unvaccinated people, the amount of the virus in breakthrough infections caused by the Delta variant (e.g., viral load) is comparable to unvaccinated infections. This led the CDC to conclude that – although rare – breakthrough infections of vaccinated individuals have the same potential level of transmissibility as unvaccinated persons. Accordingly, the agency urged communities with substantial and high transmission rates to enforce masking guidelines to prevent the spread of COVID-19.

What About OSHA’s Emergency Temporary Standard?

Last month, OSHA issued its Emergency Temporary Standard (ETS), which gave wide latitude to most employers on their masking policies for vaccinated workers. OSHA provided that, except for workplace settings covered by the agency’s healthcare ETS and the remaining mask requirements for public transportation settings, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. 

Yesterday’s CDC guidance could change that, particularly in areas with substantial and high transmission. That’s because the OSHA ETS specifically cited to the CDC’s May 13 guidance on masks as a factor to justify many of its recommendations.

According to the CDC, “high” transmission equals more than 100 cases per 100,000 people over a seven-day period, while “substantial” transmission equals 50-100 cases per 100,000 people over a seven-day period. The CDC recommended using its COVID-19 data tracker, which is updated daily by state and county. Much of the nation is currently in a substantial or high transmission category.  

Of course, employers should still take measures to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces, but many may need to implement masks for fully vaccinated workers in specific communities. 

What Should Employers Do?

The CDC’s new guidance provides important considerations for employers who may be thinking about implementing or rescinding masking policies. Even though CDC guidance is not directly binding  on employers, it is critically important. This is because OSHA’s guidance repeatedly refers to CDC guidance and clearly emphasizes the protection of people who are unvaccinated or otherwise at risk, which is the focal point of the CDC’s updated guidance.

If you have locations in areas which do not meet the criteria for “high” or “substantial” transmission, no immediate action is necessary. But it may still be prudent to have a plan in place to address how your company will adjust its masking policies if necessary. You should also consider state and local laws before making any changes to masking policies, given that states, such as Arkansas, have passed legislation barring entities (local governments) from imposing mask mandates.

If you are encouraging or mandating vaccines, you should also be prepared to address employee concerns over vaccination policies. This is especially true given the CDC’s position that infections are possible in vaccinated individuals and that those individuals may transmit the virus to others at a greater rate than previously understood.