Thread updated on Jan. 3, 2021
The Supreme Court will hear arguments on OSHA’s emergency temporary standard (ETS) in a special expedited session on Jan. 7.
The oral arguments will be made for one hour on the ETS regarding COVID-19 vaccination, testing, and masking.
This special session includes an additional lawsuit against the Centers for Medicare & Medicaid Services’ vaccine requirement for health care workers working in facilities that participate in Medicare and Medicaid.
The Supreme Court will decide the next steps concerning the ETS lawsuit, which could include a dismissal of the case or a stay of the ETS, pending further action. On Dec. 17, the 6th U.S. Circuit Court of Appeals ended a stay that was issued by the 5th Circuit on Nov. 12.
Currently, the standard is set to begin enforcement on Jan. 10.
What employers need to know
As of now, you should plan to begin enforcement of the ETS on Jan. 10.
If your workplace has more than 100 employees, they must be fully vaccinated. Or, they’ll need to begin weekly COVID-19 testing and to wear a face covering while indoors, or in a vehicle with another person, for work purposes.
OSHA issued a Dec. 18 press release stating, “OSHA will not issue citations for non-compliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
The agency also stated that it would work closely with those who fall under the standard to provide compliance assistance.
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Thread updated on Dec. 13, 2021
On Dec. 8 the Senate passed a Congressional Review Act resolution, furthering the case to repeal OSHA’s emergency temporary standard on COVID-19.
However, that does not mean that a repeal is imminent. Now the resolution heads to the House of Representatives, where it must pass with a two-thirds majority. If passed, the resolution requires President Biden’s signature to take effect. Otherwise, Congress will have to override a presidential veto, which is likely.
The Congressional Review Act (CRA) allows lawmakers to repeal regulations within 60 legislative days, or when Congress is in session. The CRA was included as part of the Small Business Regulatory Enforcement Fairness Act of 1996.
Before 2017, the CRA had only been successfully invoked once to repeal a 2001 OSHA standard on ergonomics. However, the CRA was deployed far more commonly — 16 times — during the Trump administration. And, it’s been used three times under the current administration.
Six of these resolutions have passed through one chamber of congress only to die in the other, while another six have been vetoed by presidents.
A refresh on the ETS
OSHA’s COVID-19 ETS gives employers with 100-plus employees 30 days to develop, implement, and enforce a mandatory COVID-19 vaccination policy.
Alternatively, employers can also create a policy that gives the workers a choice between vaccination or undergoing weekly COVID-19 testing.
Who supports the repeal?
Sen. Mike Braun (R-IN) sponsored the resolution for the COVID-19 ETS and garnered support from across the aisle from Sens. Joe Manchin (D-WV) and Jon Tester (D-MT) in a vote of 52-48.
“I have always supported a vaccine mandate for federal employees and the military because maintaining the essential services and military readiness the federal government provides is a matter of national importance,” Manchin said in a statement.
“However, I do not support any government vaccine mandate for private businesses. It is not the place of the federal government to tell private business owners how to protect their employees from COVID-19 and operate their businesses.”
Where does that leave employers?
OSHA suspended implementation and enforcement efforts after the 5th U.S. Circuit Court of Appeals issued a stay on Nov. 12. However, OSHA is still accepting comments on the ETS until Jan. 19.
In addition to the CRA, the ETS may also face a consolidated challenge from the 6th Circuit, based in Cincinnati. The 6th court was chosen to decide on the fate of the ETS via a lottery after 27 petitions for review on the ETS were filed in 12 different appeals courts.
“We know the path forward to finally end this pandemic involves getting everyone vaccinated,” Sen. Patty Murray (D-WA), chair of the Health, Education, Labor, and Pensions Committee, said in a statement.
“We should all be working toward that goal, not against it. After all, we have lost and all the hard work we have done to rebuild, we must not throw our economy, our communities, and American lives into jeopardy by sabotaging our pandemic response.
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Thread: Nov. 23, 2021
Recently, there’s been quite a bit of news generated by OSHA’s newest Emergency Temporary Standard (ETS). Now, you can add another wrinkle into the mix.
Designed to cover any business with 100 or more employees, the ETS states that employers must ensure all workers are either vaccinated or undergo weekly COVID-19 testing, in an effort to stop the spread in the workplace.
OSHA’s ETS states that employers have until Dec. 5, 2021 to develop and submit a written vaccination/testing plan. Then, starting Jan. 4, 2022, enforcement will become mandatory, just like any other OSHA safety standard.
However, the ETS has been met with resistance, and faces legal challenges in the courts.
The Debate Over OSHA’s Vaccine Mandate
On Nov. 12, the 5th U.S. Circuit Court of Appeals, which has jurisdiction over Louisiana, Texas, and Mississippi, halted the implementation and enforcement of OSHA’s ETS.
In granting the stay, they ruled that “the agency’s decision to include only workplaces with 100 or more employees in the ETS belies the premise that any of this is truly an emergency.”
Additionally, the three-panel judge produced a 22-page opinion on the ETS, stating that it “grossly exceeds OSHA’s statutory authority.”
The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.”
What’s important to note here, is that this is not a final ruling on the merits of the standard. Rather, it’s simply putting a pause on it for the time being. As such, the case continues to work its way through the court system.
Regardless of what it may seem, OSHA hasn’t abandoned the standard, and argues that it does in fact, have the authority to implement and enforce it.
As of right now, they have every intention of following through with the policy, barring a direct and final court order to do away with it.
The Next Step for the ETS
The next step in the journey will take place in the U.S. 6th Circuit Court in Ohio, where it faces 34 separate petitions, all to be heard by the same court. From there, the stay on the ETS could be upheld, extended, or lifted altogether.
However, legal experts are advising business owners to prepare for the ETS now, rather than wait for a ruling.
But, why make plans for a standard that might never end up happening?
Well, if the courts rule that OSHA can proceed with the standard, the Dec. 5 and Jan. 4 deadlines don’t leave you much time to get your affairs in order.
Businesses that wait until the last minute will be left scrambling, and potentially face stiff fines for lack of compliance.
What Steps You Should Take Now
You know the old saying, “An ounce of prevention is worth a pound of cure.”
It’s not just medical advice; it holds true in the business world as well. Planning now will save you a lot of headaches if the stay is lifted and the ETS is upheld.
Proactive steps include finalizing and approving a written vaccination policy, compliance policy, communicating expectations to your workers, and budgeting for any expenses.
You’ll also want to prepare a roster documenting the vaccination status of your employees (confidential of course, like any other medical record) and find out who would need weekly testing if the standard becomes enforced.
If your workers choose to get vaccinated, you also need to plan on allowing them time off for it. Currently, federal law requires up to 4 hours of paid time off to receive the vaccine, plus time off for any side-effects.
However, there are many caveats to the rules regarding this time off, such as whether your employee already receives paid sick days. A more detailed breaking of these regulations can be found here.
The Takeaways
If you’ve been following this ETS for any length of time, you’re probably aware that news changes on a seemingly daily basis. As a result, keeping up with the latest information isn’t always easy – but it is necessary.
As the case works its way through the court system, you’ll want to make sure you plan accordingly and keep your business ready to comply.
If the courts uphold the stay or do away with the standard entirely, then you won’t be any worse off.
However, if the stay is lifted, and OSHA proceeds with implementation, you don’t want to be scrambling at the last minute.
If you need help planning and implementing a vaccination and testing policy, Worksite Medical can help.
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