The OSHA ETS Is Back In Business
Well, that was unexpected. Somewhat.
Late on Friday night, December 17, 2021, when most of us lawyers had powered down for the week, the U.S. Court of Appeals for the Sixth Circuit dissolved the stay imposed by the U.S. Court of Appeals for the Fifth Circuit on the OSHA COVID-19 vaccine emergency temporary standard (ETS).
Remember, I explained here that the ETS applies to businesses with at least 100 employees and requires employers to ensure that workers are “fully” vaccinated against COVID-19 or test weekly (at their own expense) and wear a mask at all times in the workplace.
Needless to say, I canceled happy hour that night.
What did the decision say?
The ruling stated, among other things, that OSHA absolutely has the statutory authority to issue and enforce the ETS. Determining that there is a basis for the ETS, the court determined that the record demonstrated that COVID-19 has “continued to spread, mutate, kill, and block the safe return of American workers to their jobs” and that COVID-19 remains a “grave danger” to the workplace, causing death and long-term illness. OSHA, the court wrote, can and must be able to respond to dangers as they evolve.
What does this mean?
In a nutshell, the surprising ruling permits OSHA to move forward and enforce the COVID-19 vaccine mandate for employers with 100+ employees. My employment law partner Eric Meyer discussed the decision in more detail here.
Over the weekend, OSHA issued a statement delaying implementation of the ETS until January 10, 2022. Originally, when OSHA issued the ETS dropped on November 5, 2021, the standard required employees to impose the vaccinate or test weekly mandate by January 4, 2022.
Already, Petitioners have sought certification to the Supreme Court of the United States to review the 6th Circuit ruling.
Takeaway for Employers with 100+ Employees
Get ready! For employers with 100 or more employees who have taken a “wait-and-see” approach to the ETS:
- Create a policy. Fortunately, OSHA provides a template. Use it. Have your employment lawyer tailor the policy to your workplace.
- Determine the vaccination status of all employees. Yes, you need proof of each employee’s vaccination status.
- Pay employees for time taken to get vaccinated, and, if needed, to recover from any side effects. Under the ETS, this means employers must provide a “reasonable time” during work hours for each employee to get each dose, including up to four hours of paid time, at the employee’s regular rate of pay.
(That time cannot be offset by any other PTO, like sick or vacation leave.)
I’m painting with a broad brush, but you get the idea.
And, if you don’t remember the ETS requirements, shoot me an email, or watch the replay here of four of my employment law partners me on Eric Meyer’s The Employer Handbook YouTube Channel (https://bit.ly/TheEmployerHandbookYouTube) covering about details of the OSHA vax-or-test Emergency Temporary Standard (ETS).