UPDATE: OSHA’s Vaccination and Testing ETS

On Nov. 5, the Federal Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) requiring companies with more than 100 employees to develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering to work.

The very next day, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the vaccinate-or-test ETS, and last week it issued a sweeping order continuing its initial stay indefinitely pending adequate judicial review. OSHA has acknowledged the stay on its website, explaining that while it remains confident of its "authority to protect workers in emergencies, [they have] suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation."

Under the rules applicable to the ETS, all legal challenges to the ETS have been consolidated and transferred to the U.S. Court of Appeals for the Sixth Circuit. The Sixth Circuit inherits one of the broadest challenges to federal agency action in recent memory. Petitions were filed in all 12 federal circuit courts of appeals (for a total of 34 lawsuits) and represent a wide variety of state and private interests. To date, the Sixth Circuit has not issued a briefing schedule, nor is there any information available regarding the timeline for its decision. In addition, any decision issued by the Sixth Circuit will almost certainly be appealed to the Supreme Court of the United States. Employers should expect that the Supreme Court will make the final decision regarding the OSHA ETS. The Supreme Court could address the issue through the so-called "shadow docket": rulings issued on an expedited basis without the full briefing, augmentation and written opinions that cases on its main docket receive. Regardless of how the case moves through the court system, it is unlikely that the Supreme Court will rule by January.

Even with the legal challenges, AEM member companies would be wise to prepare required policies and practices, including the logistics of processing employee requests for medical and religious exemptions, even if those plans are then put on hold. Because a decision could be issued at any time, and the ETS is immediately enforceable, it is possible that employers will be required to comply with the ETS on a tight schedule. More information about employer obligations under the ETS is available here.

For additional information about the OSHA ETS, please consult these resources:

Beyond OSHA, there are 22 State Plans (OSHA-approved workplace safety and health programs operated by individual states) covering both private sector and state and local government workers. State Plans have 15 days to notify OSHA if they wish to adopt the ETS or develop their own rule, which must be at least as effective as OSHA in protecting workers and preventing work-related injuries, illnesses and deaths. State Plans must complete adoption of the rule within 30 days of the promulgation date of the final federal rule. State OSHAs and Departments of Labor will also be required to develop additional guidance around the ETS, outlining who pays for testing and whether employees are considered on-the-clock when they report for testing.

AEM is actively engaging with state lawmakers and industry partners to secure additional guidance on how member companies can comply with the ETS and any additional state rules.

Several state governments have recently considered legislation related to employer vaccine mandates during the pandemic. State legislatures in Alabama, Arkansas, Iowa, West Virginia, and Tennessee have passed laws. These actions follow Montana's passage of a COVID-19 vaccine discrimination law in May and the Texas governor's issuance of an executive order in early October purporting to expand exemptions to vaccine mandates under state law. OSHA maintains that the ETS preempts and invalidates any state laws that ban or limit an employer's authority to require vaccination. However, without a firm ruling from the federal courts, no one viewpoint is legally binding at this time, and this has led to a patchwork of state laws and (though sometimes versus) federal rules.

In the meantime, AEM will continue to monitor developments closely and provide updates to member companies on a regular basis.

If you have any questions, please contact AEM's Washington, D.C. Office at [email protected].

For more AEM news and updates, subscribe to the AEM Industry Advisor.

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