Employment Law Alert: Nationwide Injunction of OSHA’s Emergency Temporary Standard Lifted

Last Friday, the Sixth Circuit Federal Appeals Court lifted the Fifth Circuit’s nationwide injunction issued in November blocking OSHA’s Emergency Temporary Standard (ETS). OSHA’s ETS was in response to Biden’s rule requiring mandatory vaccinations or weekly COVID-19 testing for covered employers with 100 or more employees. Read our previous Law Alert with more details about the ETS.

On January 7, 2022, the Supreme Court is scheduled to hear oral arguments on the Sixth Circuit’s decision to lift the Fifth Circuit’s nationwide injunction of the ETS. In January, the Supreme Court could rule in favor of reinstating the nationwide injunction or agree with the Sixth Circuit that the injunction is not lawful.

When the Fifth Circuit issued its nationwide injunction, OSHA stated they would not enforce the ETS while the nationwide injunction was in place. Now that the nationwide injunction has been lifted, OSHA has revised the enforceability timeline of the ETS.

As a reminder, covered employers are employers with a total of 100 or more employees at any time the ETS is in effect. Employees who do not report to a workplace where other individuals are present, who work from home, or who work exclusively outdoors are exempt from these mandates. The 100-employee count includes multiple employer locations with less than 100 employees, if the total number of employees at all sites is 100 or more.

The ETS requires covered employers to take the following actions by January 10th or face citations for violations of the provisions of the ETS:

• Develop, implement, and enforce a mandatory COVID-19 vaccination policy with a disability and religious exception, or establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or undergo weekly COVID-19 testing and wear a face covering at the workplace. Oregon and Washington are still requiring all employees to wear masks indoors, regardless of vaccinated status.
• Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
• Support vaccination by providing employees reasonable time, including up to four hours of paid time per dose, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose, up to two days. Employers cannot require employees to use existing paid time off to receive the vaccine. Employers can require employees to use their paid time off to recover from the side effects. If an employee does not have any paid time off available, then the employer must pay for this time.
• Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly, if in the workplace at least once a week, or within 7 days before returning to work, if away from the workplace for a week or longer. Oregon law requires employers to pay for any out-of-pocket expenses and time away from work for COVID-19 testing.
• Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19 and immediately remove them from the workplace regardless of vaccination status and keep the employee out of the workplace until return-to-work criteria are met.
• Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated by providing the CDC document “Key Things to Know About COVID-19 Vaccines” (https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
• Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
• Make certain records available for examination and copying to an employee and to anyone having written authorized consent of that employee, or an employee representative. Employers are also required to provide information to employees upon request about the number of fully vaccinated employees and the total number of employees at a workplace.

The ETS requires covered employers to take the following actions by February 9th or face citations for violations of the provisions of the ETS:

• Require weekly testing for all employees who are unvaccinated if such employees are in the workplace at least once a week.
• For employees not in the workplace once a week, testing within seven days before returning to work if they have been out of the workplace for seven days or longer.

OSHA stated they would not issue citations for violations of the multiple above required actions until January 10th or the testing requirements until February 9, 2022, so long as the employer is exercising “reasonable, good faith efforts” to come into compliance.

OSHA has provided a summary of the ETS (https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf), and a lengthy FAQ (https://www.osha.gov/coronavirus/ets2/faqs), as well as sample polices:
(https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.osha.gov%2Fsites%2Fdefault%2Ffiles%2Fcovid-19-ets2-sample-mandatory-vaccination-policy.docx&wdOrigin=BROWSELINK) (https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.osha.gov%2Fsites%2Fdefault%2Ffiles%2Fcovid-19-ets2-sample-employee-choice-vaccination-policy.docx&wdOrigin=BROWSELINK) to assist covered employers in complying with the ETS by January 10th.

Oregon and Washington have their own state OSHA plans. Neither state has responded to the Federal OSHA’s ETS, at this time. It is likely that both states will adopt the ETS or something possibly stricter (e.g., masking requirement for all employees regardless of vaccination status) in the near future to ensure they are in compliance with Federal OSHA guidelines.

UEA attorneys are available to address your continued questions and concerns regarding the OSHA Emergency Temporary Standard and other COVID-19 related laws and restrictions. UEA attorneys are also available to assist members with complying with the ETS. UEA will continue to provide its members updates as new legal developments unfold in this matter.