Federal OSHA Emergency Temporary Standard on vaccination and testing for employees is temporarily stayed by 5th Circuit Court of Appeals
Over the past 18 months, employers have learned to adapt to rapidly changing circumstances in light of the Covid-19 pandemic. The recent spate of vaccine mandates is the latest front in pandemic-related employment concerns. The Biden administration promulgated an emergency temporary standard (ETS) mandating employers with 100 or more workers require all workers are either vaccinated or subject to testing at least once per week.
The rule includes other requirements as well, including reasonable support for employees opting to get vaccinated. This includes up to four hours of paid time to receive each vaccination dose, along with sick leave to recover from any side effects. The rule does not require employers to pay for weekly testing, but there may be other factors (such as collective bargaining agreements) which impact an employers obligation to do so.
The ETS has been subject to litigation and its implementation is in some doubt. On November 6, the 5th U.S. Circuit Court of Appeals stayed the implementation of the ETS nationwide, and on November 12 issued an order continuing the stay. There have been challenges in other circuits as well, and the consolidated appeals will be heard by the 6th U.S. Circuit Court of Appeals, which may end the stay or leave it in place. The court must consider whether the ETS was implemented to address a “grave danger” and whether the rule is necessary to protect employees from that danger (the legal basis for OSHA to enact an emergency rule).
Both Oregon and Washington operate state OSHA plans approved by federal OSHA. State-run plans must be at least as effective as the federal program. As such, eligible Oregon and Washington employers must adhere to the federal ETS if the stay is ended and the rule is implemented. In the alternative, Oregon and Washington had the opportunity to implement a statewide ETS within 30 days of the publishing of the federal ETS (by December 5). Neither state has done so, and so for now employers should look to the 6th U.S. Circuit Court of Appeals for direction on whether the ETS will stand.
If the court upholds the ETS, the turnaround will be quick, as the deadline to begin implementing some of the proposed measures have already passed. For example, the ETS mandated employers to require unvaccinated employees be masked by December 6. The deadline to implement regular testing or proof of vaccination is January 4, 2022. Because of the impending deadlines, some employers have opted to prepare as if the ETS had not been stayed. It is possible the 6th U.S. Circuit Court will adjust the deadlines if the stay is overturned, but not guaranteed.
Managing the requirements of the ETS and operating a testing and vaccination program can present new challenges, including whether to pay for employee testing, how to handle workers’ compensation claims from alleged vaccine side-effects, and how to respond to requests for vaccine exemption. If you have any questions regarding the ETS or vaccination policies more generally, please do not hesitate to contact me at or 971-867-2718.
Posted by: Matthew Baker.
