Court Allows OSHA’s Vaccine or Test Standard
for Employers with 100 Employees to Move Forward
On December 17, 2021, the Sixth Circuit Court of Appeals issued a ruling allowing OSHA to enforce the Emergency Temporary Standards (ETS) that require employers with 100 or more employees (Covered Employers) to implement either a mandatory vaccination policy or weekly testing requirement for employees not fully vaccinated (or in need of an accommodation). Covered Employers includes employers with a total of 100 or more employees even if those employees work across multiple locations, as well as employers that are part of a group of companies affiliated by common ownership or common management for safety matters.
Covered Employers must take action to implement the ETS immediately. Covered Employers have until January 10, 2022, to do the following:
- Decide whether they will mandate vaccination for all employees or allow non-vaccinated employees to provide weekly negative test results.
- Prepare a written policy on vaccination, testing and face coverings.
- Obtain proof of vaccination from vaccinated employees and maintain records of vaccination status.
- Require employees to provide immediate notification if they test positive for COVID or are diagnosed with COVID.
- Require employees who have not been fully vaccinated to wear proper face coverings when indoors or in a vehicle with another person for work purposes.
- Arrange for reporting to OSHA any work-related COVID fatalities or inpatient hospitalizations within 24 hours.
Covered Employers should immediately begin to communicate with employees how the ETS will be implemented.
If a Covered Employer plans to implement a mandatory vaccination policy, unvaccinated employees need time to get vaccinated or request an accommodation. If a Covered Employer plans to allow unvaccinated employees to provide weekly testing, employers must determine administratively how testing will occur and how to collect and monitor the testing information. Some employers are electing to perform testing “in house” or by contracting with a vendor to avoid the difficulties that may be associated with the availability of testing and delays in obtaining test results.
While OSHA issued the ETS on November 5, it was almost immediately put on pause by the courts. Once the Sixth Circuit dissolved the stay of the ETS, OSHA immediately issued an announcement that it would not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the ETS’ testing requirements before February 9, so long as a Covered Employer is exercising reasonable, good faith efforts to come into compliance with the ETS. Multiple parties have filed emergency motions with the U.S. Supreme Court to block the ETS, but as of yet the Supreme Court has not responded.
Covered Employers that fail to comply with the ETS may be subject to OSHA penalties. The maximum penalty amounts under OSHA are generally $13,653 per violation; $13,653 per day for a failure to abate, and $136,532 per violation for a willful or repeated violation.
Covered Employers should not delay their preparation for implementing the ETS on the chance that the U.S. Supreme Court will intervene. The ETS is currently a valid regulation with which Covered Employers must comply. A great deal of work is required to implement the ETS, but the cost of the penalties an employer may be subject to if no preparations are made, likely outweighs the administrative cost of being prepared.
If you have questions or need assistance drafting procedures and a policy compliant with the ETS please contact us as soon as possible.