Federal Decision to Impact Vaccine or Frequent Testing Mandate for Employers

December 21, 2021

The Decision

A few months ago, in September, President Biden sought to implement a federal mandate under the Occupational Safety and Health Administration (OSHA) called the Vaccination and Testing Emergency Temporary Standard (ETS), which would require private business with over 100 employees to require either mandatory COVID-19 vaccines or frequent testing. While the rule was originally supposed to take prior effect, the mandate was suspended by a federal court ruling in the 5th Circuit where the order was temporarily blocked.

However, this past Friday, December 17, a federal court decided to reinstate the ETS in mandating that employers of businesses comprised of 100 plus staff members require either vaccines or routine testing of employees. While the judgment should be complied with immediately, OSHA is permitting employers affected by this decision until January 10, 2022 to fully meet the obligations of this ruling. Moreover, OSHA will begin implementing the testing component of the mandate on February 9, 2022. In a statement regarding the ruling, the White House emphasized that “Especially as the U.S. faces the highly transmissible Omicron variant, it’s critical we move forward with vaccination requirements and protections with the urgency needed in this moment.”

The decision, a 2-1 ruling made in the 6th Circuit Court of Appeals, voted to suspend the prior ruling that restricted OHSA from requiring employees to take these proactive measures in combatting the spread of the nefarious virus. In its reasoning, the court explained that OSHA holds Congressionally appointed power to implement public safety measures in response to emergency threats such as the ongoing and ever evolving COVID-19 pandemic. The counterargument, asserted by the one dissenting judge, contested that OSHA does not have power to apply a sweeping rule that will impact such a large number of employees and employers across the nation. The parties challenging the ETS have appealed the decision, meaning that the Supreme Court will next rule on the final outcome of the mandate. Regardless, with the lifting of the ETS block, employers should be aware of its impact on the workplace and take proactive steps to begin compliance efforts.

How the Ruling Will Impact Employers

To begin with, employers will need to develop and implement a policy for their staff. The policy must include an option for staff members either to get vaccinated against COVID-19 or agree to frequent testing and mandatory mask wearing. For transparency purposes, it may prove helpful to communicate with employees the requirements of the OSHA ETS surrounding vaccination and testing.

Additionally, employers should consider how best to begin record collection of employee vaccination status. The ETC calls for employers to keep track of each employee’s vaccine records, including the dates and number of vaccines in their series, as well as update such information as necessary. Should this information be requested of an employer, copies of these records must be available. Therefore, requiring that employees upload copies of their vaccine cards or other such documentation may be a smart and proactive measure to take.

While employees can choose to submit testing in place of becoming vaccinated, there are restrictions that employers must impose on these staff members. If employees have regular contact with others as part of their routine workday, unvaccinated staff must provide weekly negative COVID-19 antigen tests. If such contact is not a regular practice, then instead unvaccinated employees must submit a negative test within 7 days of coming into contact with another person. Regardless of contact with others, unvaccinated staff must wear masks at all times when indoors and when around others.

Finally, in terms of developing policy for the workplace surrounding the ETS, employers should consider requiring that employees communicate any exposure to individuals with COVID-19, in addition to prompt notification of a positive COVID-19 test. Moreover, employers should also consider measures to take should an employee test positive such as requiring remote work or permitting paid time off.

Next Steps

With the ETS reinstated and with the likelihood that OSHA will continue to enforce this mandate, employers should take compliance efforts seriously. First and foremost, employers should be aware of the ETS timeline, and work backwards from the quickly approaching deadlines. By the January 10, 2022 deadline, employers should begin to consider their policy surrounding either mandating vaccines or also allowing testing, record collection for employee vaccinations, providing notice of exposures and positive diagnoses, mask wearing, and reporting of work-related COVID-19 hospitalizations and fatalities to OSHA. By February 9, 2022, employers should work to establish a testing policy for staff members who are not vaccinated that complies with the ETS requirements.

Importantly, it proves worth noting that the ETS does not apply to public employment, as the mandate only pertains to private businesses with 100 or more employees. We will continue to monitor and follow this mandate in order to provide timely communication with employers.

If you have question or concerns regarding how the OSHA ETS may impact you and your business, please contact the attorneys at Rock Fusco & Connelly, LLC.