Just when employers had nestled into a cozy pre-holiday holding pattern with COVID-19 vaccine protocols, the courts have blown open the doors with a blizzard of employer expectations effective immediately. In a startling reversal of expectations, last Friday the Sixth Circuit overturned a stay blocking the OSHA “vaccine or test” Emergency Temporary Standard (“ETS”).

Employers can hardly be blamed for experiencing policy-making whiplash. The ETS was issued on November 4, then enforcement of it was stayed by federal courts in mid-November. On Friday, December 17, the Sixth Circuit raised the vaccine mandate phoenix from the ashes, and the ETS is, as of now, “back on.” Employers with over 100 employees who put a vaccine plan on the back burner after the stay will need to re-focus their attention on creating and enforcing a workplace policy if they have not yet done so. Note: the federal contractor and CMS healthcare stays have not been impacted by this ruling.

First Deadline: January 10, 2022

While the initial ETS had set a deadline of compliance (except for testing requirements) of December 6, 2021, and all other requirements by January 4, 2022, the fact that employers have been in limbo for a month had little impact on OSHA, which issued an aggressive updated compliance framework.

Under the new plan, covered employers may be cited effective immediately for failure to comply with the ETS, but if employers can demonstrate that they are “exercising reasonable, good faith efforts to come into compliance with the standard,” they will be granted a grace period until January 10, 2022.

Testing Deadline: February 9, 2022

By February 9, 2022, all covered employers must begin their testing programs for unvaccinated or “not fully vaccinated” employees, if the employer has chosen to promulgate a “vaccine or test” policy in lieu of requiring all employees to be vaccinated. After February 9, employers who have not put testing policies and protocols in place are fair game for OSHA citations and fines of up to $13,653.

What Should We Do?

First, employers should determine whether they are covered under the ETS (our November Update will help you do so).

If you are a “covered employer” and you haven’t already put a policy in place, you should do the following before January 10, 2022:

  1. Gather vaccine status information on your employees and determine what percentage of your employees are “fully vaccinated” as defined under the ETS. “Fully vaccinated” means that an employee is two weeks past their second Pfizer-BioNTech or Moderna vaccine dose or past their one Johnson & Johnson/Janssen dose (although stay tuned, as this definition may change with the advent of boosters). The percentage of fully vaccinated employees may help you determine whether you want to institute a testing policy or mandate vaccines for all.
  1. Develop the required testing/masking or mandatory vaccine policies required by the ETS. The ETS requires employers to adopt a written policy that is distributed to all employees.
  1. Mandatory vaccine policies should address:
    1. Process for employees to seek exemptions from the mandate;
    2. Paid time off for employees to get vaccinated and/or recover from vaccination side effects;
    3. Procedure for handling requests for accommodations;
    4. Procedure for handling non-compliant employees who cannot be reasonably accommodated;
    5. Procedure for retaining records and keeping them confidential, including vaccine status and proof of vaccination as well as requests for accommodation.
  1. Testing/Masking policies should address:
    1. Procedures for unvaccinated or “not fully vaccinated” employees to provide weekly COVID test results;
    2. Procedures for requiring unvaccinated or “not fully vaccinated” employees to wear masks or face coverings (make sure to also check local and state requirements)
    3. Paid time off for employees to get vaccinated and/or recover from vaccination side effects;
    4. Procedure for handling requests for accommodations;
    5. Procedure for handling non-compliant employees who cannot be reasonably accommodated;
    6. Procedure for retaining records and keeping them confidential, including vaccine status and proof of vaccination as well as requests for accommodation.
  1. Determine how you will conduct compliance training for your managers and/or employees and how you will distribute information about your policies as required by the ETS to all employees (OSHA has issued some helpful guidance on this topic). This means you should plan to walk employees through the procedures you have established and make sure that they understand the ETS-related workplace policies, CDC vaccine guidance, protections against discrimination and retaliation and criminal penalties for knowingly supplying false documentations (such as false proof of vaccination). Managers should be familiar enough with the established procedures to answer employee questions or to direct employees to appropriate resources.

By February 9, you will need to have all employees produce proof of full vaccination (if you adopt a mandate) or either (a) proof of full vaccination or (b) a negative COVID-19 test (if you adopt a test/mask policy). Testing will need to be done, tracked, and documented weekly if your company allows an employee to test and mask rather than become vaccinated.

State OSHAs:

The federal ETS will preempt any state laws in states that are covered by the federal OSHA. These states include most U.S. territories and Alabama, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, West Virginia, and Wisconsin.

For states that have their own OSHA laws, employers with employees in those states must comply with the different standards in each state. State OSHA states include Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, Wyoming, and the territory of Puerto Rico.

In Conclusion

As we advised in November with the rollout of the ETS, employers with 100 or more employees will need to determine whether to adopt a vaccine mandate or allow employees to test weekly/wear a mask under the ETS. In making this determination, you should consider the day-to-day impacts and long-term obligations relating to your choice. In addition, employers should be prepared for the potential of OSHA inspections related to the enforcement of the ETS, but not until January 10 (for most requirements) or February 9 (for testing procedures). OSHA has set up a helpful FAQ section which may prove useful.

We welcome your calls regarding drafting an ETS compliant plan, vaccination policies, vaccine exemptions, and other issues relating to this announcement. We are available for consultation and assistance with preparing compliant plans. As always, we are staying on top of this daily-changing COVID-19 in the workplace landscape and are here to help you through it.