Covered Employers Have until January 10 to Comply or Face Substantial Penalties
By Daniel L. Herrington
Late Friday (December 17), a split, three-judge panel of the Sixth Circuit lifted the stay imposed on the OSHA Emergency Temporary Standard (ETS) by the Fifth Circuit Court of Appeals. Emergency appeals challenging the Sixth Circuit’s decision were filed with the Supreme Court after hours on Friday. In the meantime, however, OSHA quickly announced new compliance dates for the ETS requirements: February 9 for the testing requirement, and January 10 for all other requirements.
In its press release applauding the Sixth Circuit’s decision, OSHA provided the following guidance to employers: “OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the testing requirement before February 9, so long as employers are exercising reasonable, good faith efforts to come into compliance with the standard.” A complete copy of the OSHA statement can be found here.
In the majority opinion, the Sixth Circuit relied heavily on the broad power given to OSHA by Congress to address any risk to health and safety of employees at work and the fact that a stay is “extraordinary relief” that requires the moving party to carry a “heavy burden”. The dissenting judge reasoned the stay should remain if the Court found that even one of the “serious, and varied” challenges were likely to succeed. He then went on to catalog those challenges to the legality of the mandate.
You can read the entire, 57-page opinion here.
This is not the last word, as one can imagine. Recall this is not even the final word of the three-judge panel, merely an intermediate step while the full legal battle over the validity of the ETS is fought. For the Supreme Court to take up the appeal of the temporary stay, four justices would have to vote to hear this intermediate appeal. It would take five to reverse and re-impose the stay.
Employers should re-examine their OSHA vaccine or mask and test policy immediately to ensure compliance by the deadline. That means before January 10, you will have to:
- Draft and publish a policy that complies with the ETS
- Educate employees on vaccine safety and efficacy as required by the ETS. You can go to www.osha.gov for links to handouts and videos.
- Support getting vaccines by allowing paid time off for vaccination or side effects (required by ETS after January 10)
- Poll employees on vaccine status and make a spreadsheet. (required by ETS)
- Follow applicable state law and CDC guidance on masking, social distancing, sanitation, etc. Per the ETS, all unvaccinated employees are required to wear face coverings when indoors or in a vehicle for work purposes, subject to certain exceptions. Vaccinated employees in high transmission areas are “strongly encouraged” to wear a mask indoors. As of today (December 20), CDC still says most of Arkansas is a high or substantial transmission area.
- If you have a positive case, perform contact tracing and quarantine those unvaccinated employees who have been exposed.
- Consider incentives to employees who get vaccinated (e.g. cash, drawings, extra PTO).
- Call your lawyer if you have any other questions.
Employer’s also need to keep an eye on the effective date (January 13, 2022) of Act 1115 of 2021, an Arkansas law that will complicate things further. Barring litigation stopping the law, Act 1115 will require employers who require vaccines to allow employees to opt out for any reason. And if there is a testing requirement, it allows the employee a broader range of options than the ETS would, including proof of antibodies due to previously having COVID. Generally, valid federal regulations will preempt conflicting state law, but the validity of the ETS remains in flux.
Finally, don’t forget that OSHA has used the General Duty Clause of the OSH Act to cite employers that don’t take reasonable precautions to protect employees from the known dangers of COVID. That is in place now and, will remain, even if the ETS is eventually struck down.
Daniel L. Herrington is a partner in the Labor and Employment Relations Practice Group focused on representing employers in all areas of labor and employment law, including ADA, FMLA, Wage and Hour, Title VII, OSHA and NLRA. He proactively works with his management clients to help ensure their employment decisions can withstand legal scrutiny.
Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.