By Sally A. Piefer

Last week, OSHA released its mandatory vaccine emergency temporary standard (ETS), which would require employers with 100 or more employees to implement a mandatory vaccine requirement for their workers, or alternatively to give employees the choice between receiving the COVID-19 vaccine or being subject to mandatory weekly testing.

As we anticipated, a number of lawsuits were filed across the nation seeking to invalidate the ETS. One of those lawsuits was filed in the Fifth Circuit Court of Appeals, which has jurisdiction over Louisiana, Mississippi and Texas. As you might recall, the Fifth Circuit was the location where the white-collar exemption rule was litigated several years back, and has been historically known as an employer-friendly location for challenges to earlier OSHA ETS.

On Saturday, the Court granted a Motion to Stay Enforcement of the ETS, pending a decision from the Court. OSHA has until 5:00 p.m. today (Monday) to respond to the request for a permanent injunction, and the petitioners have until 5:00 p.m. on Tuesday to file a reply.

What does this mean for employers? Technically, because the Fifth Circuit only has jurisdiction over the states identified, the ETS has been temporarily halted in those states. However, similar lawsuits have been filed across the country – including several which have jurisdiction over Wisconsin. The Wisconsin Institute for Law & Liberty (WILL) challenged the OSHA ETS last week and similarly asked for the court to issue an emergency motion. In that case, OSHA has until November 12, 2021 to respond. The State of Indiana also filed a lawsuit and similarly asked for a stay, but to date no response deadline has been set in that case. Similar lawsuits are pending in the Sixth Circuit (Kentucky, Michigan, Ohio & Tennessee), the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota & South Dakota) and the Eleventh Circuit (Alabama, Florida & Georgia)

If you have questions about this new development, please contact Attorney Sally Piefer or the Lindner & Marsack attorney with whom you regularly work. We will continue providing updates as we learn more about new developments in the cases being litigated and how they will impact your business.

By Tyler J. Hall

On Thursday, November 4, 2021, the Biden administration, officially announced additional steps it is taking to battle the COVID-19 pandemic, and it starts with vaccinating more American workers. The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced the new emergency temporary standard (“ETS”) “to protect more than 84 million workers from the spread of the coronavirus on the job.”

Under this new temporary standard, covered employers must develop, implement, and enforce a written mandatory COVID-19 vaccination policy. Alternatively, covered employers may adopt a written policy requiring employees to either choose to be vaccinated or undergo regular testing and wear a face covering at work. Covered employers must provide up to 4 hours paid time off for workers to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects of each vaccine dose. An employer must provide information in a language and at a literacy level its employees will understand.

“Acceptable proof of vaccination status” includes: (i) record of immunization from a health care provider or pharmacy; (ii) a copy of the COVID-19 Vaccination Record Card; (iii) medical records documenting the vaccination; (iv) immunization records from a public health, state, or tribal immunization information system; or a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). A signed and dated employee attestation is acceptable in instances when an employee is unable to produce proof of vaccination. Employees who cannot provide an acceptable form of vaccination or who won’t provide an attestation must be treated as unvaccinated. Employers must also maintain and preserve a record and roster of each employee’s vaccination status—subject of course to applicable confidentiality requirements.

The ETS covers employers with 100 or more employees. The 100 employee threshold includes all employees, regardless of location, and regardless of whether they are working remotely. While they count towards the threshold, fully remote workers and workers who work exclusively outdoors are not subject to the ETS. Employees from a staffing agency are only counted by the staffing agency, not the host employer.

Importantly, employers are not required to pay for testing or face coverings. This is designed to push more employees to get vaccinated in lieu of paying for testing. Collective bargaining agreements (CBA) may dictate who pays for testing agreements or state or local law mandates may impact whether an employer must pay for the testing and/or face coverings.

The ETS also requires employers to do the following: (1) require employees to provide prompt notice of a positive COVID-19 test or diagnosis; (2) remove COVID-19 positive employees from the workplace; (3) test non-vaccinated workers at least once every 7 days (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer); and (4) ensure unvaccinated employees wear face coverings indoors or while in a vehicle with another person for work purposes. Tests cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Employers must maintain a record of each test result provided by an employee and must prevent employees from reporting to work until a test is provided.

Employers must be prepared to provide documentation of its written policy and the aggregate number of employees vaccinated within 4 business hours of a request by OSHA, and all other records requested by OSHA must be produced by the end of the business day following the request.

According to OSHA, this ETS with cover two-thirds of the nation’s private-sector workforce. In the 26 states and 2 territories with OSHA State Plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff. Wisconsin does not have an OSHA State Plan.  The ETS does not cover those health care employees covered by the earlier standard or federal contractors covered by the earlier executive order.  It also allows for a CBA or state/local law to place more stringent restrictions on the employers.

The ETS is effective immediately upon its publication in the Federal Register, which is scheduled for November 5, 2021. Employers must comply with most requirements within 30 days of publication. Employers must comply with testing requirements within 60 days of publication.

Another rule issued by the Centers for Medicare & Medicaid Services requires roughly 17 million health care workers to be vaccinated by the same deadline, but with no option for weekly testing in lieu of vaccination.

Employers covered by the OSHA rule can challenge it in court, and challenges are expected in the coming days. OSHA will continue to monitor the pandemic, and make changes to the ETS as necessary.

The above information provides only a summary of the highlights of the ETS. If you have questions or need assistance with policy development, please contact Attorney Tyler Hall or the Lindner & Marsack attorney with whom you regularly work. We will continue providing updates as we learn more about new directives, rules, or guidance.