Sixth Circuit to Hear Challenges to OSHA’s Vaccine-or-Test ETS

November 24, 2021/Rampart Benefit Planning/Comments Off

The U.S. Court of Appeals for the Sixth Circuit has won the Multi-District Litigation lottery and will decide the merits of the challenges to the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccine Emergency Temporary Standard (ETS). That means the legal challenges to OSHA’s ETS will be consolidated and transferred to the Sixth Circuit, where the case will be heard by a three-judge panel. The Sixth Circuit will also have the opportunity to lift, modify, or extend the stay that was put into place by the Fifth Circuit Court of Appeals on November 12.
OSHA has announced that it has suspended its activities related to the implementation and enforcement of the ETS pending future developments in the litigation. As a result, the OSHA ETS implementation deadlines of December 6, 2021 and January 4, 2022 are no longer in effect pending further action by the Sixth Circuit. Regardless of the outcome in the Sixth Circuit, the fate of the OSHA ETS may well be decided by the U.S. Supreme Court.

Which Employers Are Covered by the ETS?
The ETS generally applies to employers in all workplaces that are under OSHA’s authority and jurisdiction, including industries traditionally regulated and inspected by OSHA such as warehouses, construction, and manufacturing but also include office-based employers who have not interacted with OSHA in the past, like financial services, law firms and other professional and technical work environments. Those employers who have a total of 100 or more employees company-wide, at any time the ETS is in effect, are covered by the ETS.

Which Employers Are Not Covered by the ETS?
The ETS does not apply to employers subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or to healthcare employers that participate in Medicare and Medicaid programs that are covered by the recently released vaccine mandate ordered by the Centers for Medicare and Medicaid Services.

How Do Employers Count Employees?
Employers must count all employees located in all U.S. locations when determining if they meet the 100-employee threshold. Part-time, hourly, seasonal employees need to be included along with any full-time employees on the payroll. Independent contractors are not included in the count.

Initially, employers should determine their headcount as of November 5, 2021. If the employer exceeds 100 employees on that date, they must comply with the rule while it is in effect, even if they fall below 100 employees later. If an employer has fewer than 100 employees as of November 5, 2021, but later exceeds the threshold while the ETS is in effect, the employer must come into compliance with the rule, and it will remain in effect until the rule expires.

Special rules apply for franchisors/franchisees, staffing agencies and joint employers. Employers with those arrangements should review the ETS FAQs for more information about how to count their employees for this determination.

What Does the ETS Require?
The ETS requires covered employers to either mandate covered employees to be fully vaccinated against COVID-19 or require covered employees who are not fully vaccinated to test for COVID-19 at least weekly and wear a face covering in the workplace.

In addition, employers must also: Establish, implement, and enforce a written policy on vaccines, testing, and face coverings; Provide paid time off to employees to obtain the vaccine and to recover from side effects experienced following any primary vaccination series dose for each dose; Obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status and all COVID-19 test results; Provide certain information to employees on vaccines and the requirements of the ETS; and Notify OSHA of any employee work-related COVID-19 fatality or hospitalization

Do All Employees Have to Follow These Rules?
Three types of employees may be exempt from the ETS. If any of the following conditions are true, the employee does not need to comply with the vaccination mandate or testing/face covering requirement: The employee does not ever report to a workplace where other individuals are present; The employee is working from home (the exemption only applies while the person is working at home); or The employee works exclusively outdoors All other employees must either submit proof of vaccination or show proof of a negative COVID-19 test every seven days and wear a face covering at work. A “face covering” is defined as consisting of two or more layers of fabric, secured to the head with straps or ties, covering the nose and mouth, and solid with no slits or holes.

What Documentation Do I Need to Prove Vaccination Status of My Employees?
The ETS requires employers to obtain proof of vaccination using one of the following:

– Record of immunization from a healthcare provider or pharmacy;
– A copy of the COVID-19 Vaccine Record Card;
– A copy of medical records documenting the vaccination;
– A copy of immunization records from a public health, state, or tribal immunization information system; or
– A copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of healthcare professional or clinic site administering the vaccine.

Employers must maintain a record of the documentation used to verify vaccination status in either a physical or digital format. These records are considered medical records that must be kept confidential, stored securely and separately from the employee personnel records. State laws may apply to the handling of this information as well and records should be stored in a way that complies with any other state-specific privacy rules.

What if My Employee is Unable to Produce Proof of Their Vaccination?
If an employee is unable to produce acceptable proof of vaccination, employers may accept a signed and dated employee attestation. The attestation is to be used in limited circumstances, only after the employee has attempted to secure alternate forms of documentation and has been unsuccessful in doing so.

Are We Required to Pay Employees for Time Off to Get Vaccine?
Yes, the ETS requires employers to support vaccination by providing employees reasonable time, up to four hours of paid time, to receive each primary vaccination dose and reasonable time and paid sick leave to recover from side effects following each primary vaccination dose.

Employers may not require employees to use accrued sick leave or other leave to obtain their primary vaccination dose(s) and the employee must be paid for up to four hours at their regular rate of pay. The paid leave requirement only applies if the employee is vaccinated during work hours. Employees who are vaccinated outside of work hours are not eligible to be paid for time spent receiving the vaccine.

Employers may require employees who have accrued sick leave to use that leave when recovering from vaccination side effects. Employers who do not differentiate between different types of leave (e.g., PTO that covers sick leave and vacation leave), also may require employees to use that leave when recovering from side effects of the vaccination. If employees have separate sick leave and vacation leave, the employer can only require employees to use their accumulated sick leave when recovering from vaccination side effects. Employers must provide additional sick leave for this purpose if the employee has exhausted all available sick leave.

How Does a Testing Program Work if We Want to Offer That Option?
Any employee who is not fully vaccinated must be tested for COVID-19 at least weekly if they report to a workplace where there are other individuals or if they interact with coworkers or customers outside of the home. The employee must take and provide proof of a negative test at least once every seven days. If the employee reports to a workplace less than once every seven days, the employee must be tested within seven days before returning to the workplace and must provide negative test results before returning. Employers may choose to test employees on a more frequent basis, the seven-day interval is the minimum requirement.

The ETS does not prohibit or require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements.

PCR and antigen (rapid) diagnostic tests are allowed to be used, but antibody tests are not. Importantly, the test cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

What Are the Consequences of Non-Compliance?
OSHA may cite and penalize employers for general non-compliance with all or specific aspects of the ETS or cite employers for violations of specific instances. Employers found to have intentionally disregarded its obligations or exhibited a plain indifference to employee safety or health, will face stricter penalties. The penalty for an OSHA violation is $13,652 per violation, with penalties for willful or repeated violations rising to $136,532 per violation.

What Should Employers Do Now?
While the ETS is stayed, employers do not have to comply with its terms. Some employers may choose to do so, while others attempt to draft policies and put procedures in place in case the stay is lifted, and still others may choose to wait and see. State OSHA plans may choose to adopt the ETS or may delay taking action until the litigation plays out.

Please be advised that this content has been prepared for informational purposes only and should not be relied on for legal or tax advice.

Posted in COVID-19, Insurance Insights