On Nov. 5, OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) became official for private employers with more than 100 employees. Seema Nanda, the Department of Labor’s solicitor, maintains OSHA has full authority to implement the ETS in order to protect employees from the “grave danger” posed by the ongoing COVID-19 pandemic.
Just a day after it was rolled out, the 5th Circuit Court of Appeals issued a temporary injunction that has stayed the enforcement of the ETS. There are over 25 lawsuits filed by various states challenging this standard, including one filed by Oklahoma.
While the 5th Circuit decision does not explicitly state that the injunction applies on a nationwide basis, there is reason to believe that is the case based on past precedent. It is anticipated by many appellate scholars that this decision will be put into a “lottery” with other court rulings to see which will be the representative case for consideration by the U.S. Supreme Court. The lottery system happens in the next 10 days, so we should all know more soon about the next steps in this high-stakes legal battle.
Although the ETS has been temporarily stayed, the final outcome is not certain. Should the ETS survive this legal battle, covered employers are to have several policies and procedures and recordkeeping protocols in place by Dec. 5, 2021, in advance of the Jan. 4, 2022, deadline for unvaccinated employees to be fully vaccinated. Regardless of what happens in court, covered employers should be ready to comply by Dec. 5, 2021.
The ETS applies to all employers who have at least 100 employees. In a departure from the usual OSHA methodology, the 100 employees consist of the total number of any employees, anywhere. This includes employees who are not on site and who are working virtually.
So, what are a covered employer’s choices? Either mandate vaccinations or deal with weekly testing requirements for unvaccinated employees who, if the ETS survives, must present negative test results every seven days. Even those employees who receive religious or medical exemptions will likely still have to follow this testing rule. The honor system will not apply; employees will have to provide proof of negative tests and/or vaccinations with copies to be retained by employers for the required COVID-19 Employee Roster. Self-tests will only be accepted if administered under observation by an authorized telehealth proctor or the employer.
Remember, if the ETS is still in place, starting Jan. 4, 2022, even if an employer isn’t going to require vaccinations, unvaccinated employees must still present weekly negative tests. The ETS says the costs of that testing must be borne by the employee, unless federal or state law says otherwise. Oklahoma’s Labor Code contains such a law, making Oklahoma employers responsible for paying the costs of any medical examinations required of applicants or existing employees in order to maintain their jobs, and we already know the EEOC considers COVID-19 testing to be a “medical examination.”
* This article first appeared in The Journal Record on November 12, 2021, and is reproduced with permission from the publisher.