OSHA Covid-19 Emergency Temporary Standard (ETS) – FAQ
Update January 13, 2022
United States Supreme Court issues two opinions on COVID 19
OSHA ETS DECISION
In an opinion issued this afternoon, the United States Supreme Court reinstated the stay preventing OSHA from enforcing the vaccinate or test emergency temporary standard. Employers need not worry about this OSHA ETS for the time being (or likely forever). The Court is throwing it back to the legislatures and private employers to regulate COVID19 in their workplace in so far as vaccine and testing mandates go.
HHS Healthcare Employer Vaccine Mandate
For those of you in healthcare businesses where the HHS vaccine mandate applies, the Court, in a second opinion issued today, went in the opposite direction of the OSHA ETS decision and upheld the enforcement of the vaccine mandate in applicable healthcare settings.
Update 12/17/2021: OSHA has spoken, here’s the latest from our friends at Masuda, Funai, Eifert & Mitchell
6th Circuit Dissolves Stay
Employers With 100 or More Employees Must Comply
On Friday, December 17, 2021, the United States Court of Appeals for the Sixth Circuit (the “6th Circuit”) dissolved the Fifth Circuit’s stay of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) for employers with 100 or more employees. As a result, OSHA can now implement the ETS. In response to the 6th Circuit’s decision, and to “account for any uncertainty created by the stay,” OSHA has indicated that (1) it will not issue any citations for noncompliance with any of the requirements of the ETS before January 10, 2022, and (2) it will not issue any citations for noncompliance with the weekly testing requirements before February 8, 2022. To avoid noncompliance citations, employers must exercise good faith efforts to come into compliance with the standard.
Among other things, employers with 100 or more employees must:
(1) Establish a written vaccination policy
(2) Determine the vaccination status of all employees
(3) Provide paid time off and sick days for COVID vaccinations and the effects
(4) Require employees to provide notice of all positive COVID tests or diagnosis
(5) Remove any employee who receives a positive test or diagnosis
(6) Ensure non-fully vaccinated employees wear facemasks indoors
(7) Provide educational information
(8) Report fatalities and hospitalizations to OSHA
(9) Make COVID vaccination records available to employees and their representatives
(10) Ensure employees who are not fully vaccinated are tested weekly
Update 11/19/2021: The fight continues legally it seems but here is the latest https://www.corpmagazine.com/interest/health-and-wellness/osha-halts-enforcement-of-bidens-vaccine-mandate-for-large-businesses/
A timely debrief from my friend, Jon Vegosen’s law firm published an FAQ that his colleague, Vince DeCicco, and he wrote concerning the long-awaited Emergency Temporary Standard requiring private employers with 100 or more employees to ensure that most of their workers be fully vaccinated or provide negative COVID-19 test results on at least a weekly basis.
On November 5, 2021, under the direction of President Biden, the Occupational Safety and Health Administration (OSHA) issued its long-awaited Emergency Temporary Standard (ETS) requiring private employers with 100 or more employees to ensure that most of their workers be fully vaccinated or provide negative COVID-19 test results on at least a weekly basis. The ETS comes after employers and employees alike speculated for weeks over what the details would be. This newsletter addresses a number of questions that we are receiving from businesses about the ETS. We are also including some helpful links.
Here are the questions:
How are employees counted to determine whether an employer meets the 100-employee threshold for coverage under the ETS?
What date should employers use to determine whether they meet the 100-employee threshold?
Are certain employees or employers exempt from the 100-employee threshold?
Will employers subject to the ETS have to implement a mandatory vaccination policy?
How does testing for unvaccinated employees work?
What happens if an employee tests positive for COVID-19?
Will employers need to determine the vaccination status of each employee?
Are there exceptions to mandatory vaccination or weekly testing?
Will employers need to inform employees about the details of the ETS?
May employers require employees to use personal time or sick leave to receive a vaccine or to recover from its side effects?
When does the ETS go into effect and how long will it be in effect?
What will happen if an employer does not comply with the ETS?
When will the ETS become permanent?
May states pass laws to prohibit or limit an employer’s ability to require vaccines for employees?
Have there been any legal challenges made to the ETS?
If challenges have already been made to the ETS, and if more challenges to it will be made, what should an employer do?
You can find the answers at https://www.fvldlaw.com/what-we-think/covid-19-emergency-temporary-standard-faqs/
