OSHA Issues Emergency Temporary Standard Which Pending Court Action Applies to Most Employers in an Effort to Minimize the Risk of COVID-19 Transmission in the Workplace

On Thursday, November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced a new Emergency Temporary Standard (“ETS”) to increase protections for more than 84 million workers. The ETS covers most of the nation’s private sector workforce. The ETS also covers public sector workers employed by state or local governments in states, such as New Jersey, that participate in OSHA State Plans. Such coverage extends but is not limited to educators and school staff. Under the new standard, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, or a policy which requires employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. In addition, covered employers are required to do the following: (1) Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain such records; (2) Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis and remove the employee from the workplace regardless of vaccination status; (3) Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly or within 7 days before returning to work if the worker is away from the workplace for a week or longer; and (4) Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes. The ETS does not require employers to pay for testing or face coverings, although they may be required to through other laws, regulations, collective bargaining agreements, or other collective negotiated agreements.

Pursuant to the OSHA ETS, covered employers are employers with at least 100 employees firm or company wide at any time during the duration of the ETS. The ETS does not apply to workplaces that are covered under the Safer Federal Workforce Task Force or in settings where any employees provide healthcare services or healthcare support services when subject to the ETS for healthcare employers. The ETS does also not apply to the employees of covered employers who do not report to a workplace where other individuals, such as co-workers or customers are present; employees who work at home; employees who work exclusively outdoors; employers with fewer than 100 employees in total; and public employers in states without State Plans.

While the ETS was effective for covered employers as of Friday, November 5, 2021, the Fifth Circuit Court of Appeals halted enforcement of OSHA’s emergency temporary standard (ETS) vaccine mandate pending expedited judicial review on November 6, 2021. In sum, the court held that OSHA had failed to show the emergency regulation is necessary to protect employees from “grave danger” due to exposure to “substances or agents determined to be toxic or physically harmful.”

Although OSHA is able to enforce workplace safety and health standards in certain situations that reach a “grave danger” standard, the court described the mandate as “grossly” exceeding OSHA’s statutory authority. The court stated COVID-19, which has caused a nearly two-year-long global pandemic, does not pose a grave danger because the virus does not rise to such a toxic or physically harmful “substance” or “agent” contemplated by Congress, nor has it reached the emergency authority threshold for “grave danger.” With respect to the necessity of the ETS, the Fifth Circuit also took issue with the relationship between the ETS’s vaccination requirements for all employers with over 100 employees and the alleged hazard of COVID-19, stating the ETS fails to account for the differences in workplaces and workers.

Petitions have been filed in 11 of the 12 U.S. circuit courts of appeal. On or about November 16, 2021, all the petitions for review will be consolidated before one of the circuits, which will be chosen through a lottery system. The selected circuit will determine whether to continue, alter, or lift the Fifth Circuit’s order of preliminary stay. The U.S. Supreme Court is expected to eventually decide the matter.

For the time being, OSHA’s December 6 and January 4 deadlines are no longer in effect. Even if the stay is lifted, the timing for employers to comply with the ETS rule will be tolled accordingly so employers will have some breathing room to become compliant. All of this emphasizes that employers should think about what steps they will need to take to further back-to-office efforts irrespective of whether the ETS is found lawful. With legal guidance, employers will be able to maintain a vaccine or testing mandate and should be prepared to have the compliance framework in place, pending the outcome of the litigation.

If you have any questions about this alert or would like to speak to an attorney concerning the issue of the OSHA ETS contact the authors, John L. Shahdanian II, Valentina Scirica, Soundous Bouchouar, or any of the other members of MARC Law’s Employment Counseling Group.

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