On November 5, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration ("OSHA") published its COVID-19 Vaccination and Testing Emergency Temporary Standard ("ETS") which applied to employers with over 100 employees. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay enforcement of the ETS. The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." The U.S. Court of Appeals for the Sixth Circuit now has jurisdiction over ETS challenges and the Department of Labor has filed a motion to lift the stay. OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
The ETS set deadlines in December 2021 and January 2022 requiring large employers to adopt a mandatory vaccination plan for its employees, in which employees could choose to become vaccinated or submit to weekly COVID-19 testing and mask-wearing in the office. Due to the stay, all of these deadlines are on hold, and expected to be extended if the courts uphold the ETS. Presently, the parties challenging the ETS have requested that the Sixth Circuit court hear the matter “en banc” which means the request is to bypass the typical three-judge panel and have the matter heard by all active judges, a necessary step before a petition to the Supreme Court of the United States. The government’s response to the request to hear the case en banc was due on November 30, 2021. It is expected that whichever way the Sixth Circuit rules, the losing side will appeal to the Supreme Court. While the timeline of this is unclear, it could take several weeks to months.
The Equal Employment Opportunity Commission ("EEOC") has said that employers may mandate vaccination subject to legally available medical and religious exemptions, and in California, the Department of Fair Employment and Housing ("DFEH") has concurred. While the fate of the ETS is being decided, employers are free to adopt rules and policies which mirror the ETS or are more strict than the ETS, such as requiring vaccination without permitting an employee to choose between vaccination and testing, subject to evaluating reasonable accommodations for approved medical and religious exemptions. Employers should be advised that any implemented policies stricter than the ETS could be subject to potential scrutiny/challenges from employees and their counsel in the future given the current lack of formal guidance relating to the scope of acceptable exemptions. Employers in California who mandate vaccinations are required to pay for the time it takes to get tested or vaccinate because such time constitutes “hours worked.” Employers must also pay for the cost of a COVID-19 test if the employer mandates the test, although employees can be sent to free testing sites to mitigate this cost.
Employers who are unsure of what path to take could start by polling their employees to determine vaccination status, the results of which may help assess the administrative impact of implementing a vaccine mandate. Employers should consult with counsel about preparing for the implementation of the ETS if it is upheld and to discuss their own vaccine policies should they chose to implement one now.