UPDATE: On January 25, 2022, OSHA announced that it is withdrawing the vaccination and testing emergency temporary standard (ETS). This action will end the current litigation. OSHA is moving forward to use the directives set forth in the withdrawn ETS as a proposed final rule.

The Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) on November 5, 2021. The ETS requires that covered employees must be fully vaccinated or submit to weekly COVID-19 testing and comply with other safeguards. Davenport Evans lawyer Brooke Schmidt explains.

Employers must first determine whether they satisfy the 100-employee threshold. Employers must count employees working for them on a national level and it cannot only count employees working in individual locations. All part-time employees and employees working exclusively from home will be counted to determine the threshold number.

A covered employer must implement the ETS’s requirements, other than the requirement of weekly testing for unvaccinated workers, within 30 days from November 5, 2021. The covered employer must institute a mandatory vaccination policy, or it must ensure that unvaccinated workers are tested for COVID-19 once a week. A covered employer must collect acceptable proof of vaccination and must collect the results from the COVID-19 tests. All vaccination proof and test results should be treated as confidential medical information.

The covered employer must also provide paid time off for employees to get vaccinated (up to four hours) and the ETS requires “reasonable time and paid sick leave” for the employee to recover from side effects that may be experienced after a vaccination. The ETS does not require the employer to pay for the unvaccinated employee’s weekly COVID-19 testing.

The ETS’s requirements do not extend to those employees that are working exclusively from home. An employer does not need to inquire about the exclusively remote employee’s vaccination status, and it does not need to require weekly testing of an exclusively remote unvaccinated employee.

A number of groups are challenging the legality of the ETS. Recently, the Fifth Circuit Court of Appeals granted a nationwide stay of the enforcement of the ETS. The cases will be consolidated, and the consolidated case will be heard by a Circuit Court chosen by the lottery under 28 U.S.C. § 2112(a)(3). The chosen Circuit could lift the stay. Because the stay could be lifted and the deadlines are quickly approaching, covered employers should begin to develop a compliance strategy and begin to implement the requirements. OSHA’s monetary penalties for non-compliance and violations can be extensive. Davenport Evans attorneys are here to discuss compliance and any other questions employers and employees have about the ETS.


*UPDATE On January 13, 2022: On January 13, 2022, the United States Supreme Court stayed OSHA’s Vaccination or Testing ETS. At this time, covered employers do not need to comply with the ETS’s requirements. The case will now be litigated on the merits before the Sixth Circuit Court of Appeals.

*UPDATE on January 3, 2021: South Dakota employers that fall under the OSHA ETS, will be required to pay for the weekly testing of their employees. Under South Dakota law, it is a Class 2 “misdemeanor for any employer to require any employee to pay the cost of a medical examination or the cost of furnishing any records required by the employer as a condition of continued employment.” S.D.C.L. § 60-11-2. The Sixth Circuit Court of Appeals recently lifted the stay on the ETS, making the ETS enforceable. The United States Supreme Court will hear oral arguments for the legal challenges to the ETS on January 7, 2022.

*UPDATE: On Friday, December 17, 2021, a three-judge panel for the Sixth Circuit Court of Appeals lifted the nationwide stay set in place by the Fifth Circuit. Thus, OSHA’s ETS for employers with 100 or more employees is now in effect. OSHA announced covered employers have until February 9, 2022, to implement the testing requirements for unvaccinated employees. OSHA will not issue noncompliance citations for any of the ETS’s requirements before January 10, 2022.  In order to rely on the extended compliance dates, covered employers must exercise reasonable good faith efforts to come into compliance with the ETS.

As discussed in the article below, the ETS sets forth requirements for written policies, face coverings, the collection of vaccination proof, the maintenance of employees’ medical records, weekly testing of unvaccinated employees, mandatory removal of employees with positive COVID-19 tests or employees who do not comply with testing requirements, and communications about vaccine information and written policies.

*UPDATE: On November 12, 2021, the Fifth Circuit Court of Appeals ordered OSHA to suspend its implementation and enforcement of the ETS. OSHA acknowledged the court order and suspended its activities related to the ETS.

The employment law attorneys at Davenport Evans stand ready to help in this developing area of law. Contact us at [email protected], 605-336-2880, or find a specific lawyer here.