OSHA's Vaccination and Testing Emergency Temporary Standard (ETS) is back in effect following a ruling by the 6th Circuit Court of Appeals on Friday, December 17. At its core, the ETS requires private employers with 100 or more employees to implement a policy mandating all employees, with few exceptions, be vaccinated against COVID-19. The employer may but is not required to offer employees the option of submitting to weekly testing and wearing masks in lieu of vaccination. In a recent webinar, we presented a detailed discussion of the ETS requirements.

Immediately following the 2-1 decision by the 6th Circuit, lifting an injunction preventing OSHA from enforcing the ETS, eight separate emergency petitions were filed with the U.S. Supreme Court asking it to reinstate the injunction. OSHA's response brief is due December 30, and the Supreme Court has scheduled oral argument for January 7, 2022. The Court is likely to issue its ruling shortly thereafter. Because the outcome is uncertain, private employers with 100 or more employees should prepare to comply with the standard as originally promulgated in November.

Fortunately, in response to the ruling, OSHA issued a statement extending the deadlines before compliance enforcement will commence. OSHA's statement reads: "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."

As a result, employers should ensure they comply with OSHA's ETS in the following ways by the following dates:

By January 10

  • 1. Have a policy in place that, among other things, (a) requires employees to be vaccinated; (b) offers employees four hours of paid time off to receive the vaccine and a reasonable amount of sick leave to recover from its effects; (c) requires all unvaccinated employees to wear face coverings while in the presence of others.
  • 2. Decide whether to allow employees to opt for weekly testing and regular masking rather than vaccination and, if so, identify the testing protocol and logistics and plan for tracking test reporting.
  • 3. Have an up-to-date log of the vaccination status of all employees. The ETS has specific recordkeeping requirements.

By February 9

  • 1. Begin weekly testing for all unvaccinated employees who enter the workplace (including those for whom religious or disability accommodations are granted). For unvaccinated employees who only enter the workplace rarely, OSHA requires they be tested within the seven days prior to entering a work facility.
  • 2. Testing can be completed using over-the-counter tests but only if observed by the employer or a telehealth doctor.
  • 3. OSHA does not require employers to pay for the testing, but other federal, state, or local laws may require employers to do so. Before requiring employees to pay for testing, employers should consult with counsel to see if doing so is permissible under applicable state or local law.

Multistate employers should bear in mind that states with OSHA-approved state plans (e.g., CA, WA, OR, and nearly 20 others) may choose to implement their own state rules concerning vaccines, testing, face coverings, and related issues provided they are at least as restrictive as the OSHA standard.

Of course, as was true before OSHA adopted its ETS, there is no legal prohibition in most jurisdictions on an employer voluntarily implementing its own mandatory vaccination policy so long as it is not inconsistent with whatever OSHA or other agencies require.

Experienced DWT attorneys are available to assist with formulating a policy or complying with any of the requirements of the OSHA ETS.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.