(Update note: Supreme Court Says No to OSHA Employers Vaccine-or-Test Mandate 1/13/2022, but leaves mandate in place for healthcare workers.)

WOW! OSHA ruling is Issued on Thursday, then a Circuit Court of Appeals grants an emergency stay on the ruling Saturday….  And so the roller coaster ride begins.

You may recall that President Biden announced on September 9 that OSHA was being tasked to create new regulation requiring large employers to keep a roster of employee vaccination status and implement specific COVID protections,  and that gives employers the green-light to mandate COVID vaccination for their employees, if they choose to. OSHA shared a plan with the legislature on October 12, and on November 4, the legislation was enacted.

COVID Vaccination Card

This new regulation is called “Emergency Temporary Standard (ETS) on Protecting Employees from COVID-19”. The media has begun calling it the “Vax or Test Rule”. The rule has language that limits states and municipalities from trying to ban employers from requiring vaccinations, face coverings, or COVID testing. The COVID ETS is being enacted for a 6 month period, with plans to re-evaluate it at the end of that period (When there is no longer a grave danger from COVID for workers, the ruling will be discontinued).

Prior to the ETS being issued, 27 states had announced plans to challenge the COVID ETS, and on Saturday (November 6) the 5^th Circuit Court of Appeals granted an emergency stay of the newly enacted OSHA Emergency Temporary Standard. The government is expected to issue a response to this legal challenge on Monday (November 7). The Labor Department says they are confident in having legal authority to issue the ETS rule, and OSHA says they are fully prepared to defend the standard in court. Therefore, we should expect legal tussling over the new OSHA rule to be in our nightly news this week.

What does the Standard Require?

The regulation requires that employers with 100 or more employees (companywide) keep a roster on COVID vaccination status of their employees. They can either mandate that all employees be vaccinated, or they can allow any choosing to remain not-fully-vaccinated to go take a COVID test weekly (reporting any positive tests quickly, and staying out of work if diagnosed with COVID). In addition those choosing to remain unvaccinated will be required to wear a face-covering at all times when indoors at work or in a vehicle with another person for work.

Testing samples are normally from the nasal        cavityThe companies are not required to implement parts of the standard with the following types of employees:

• Employees who work alone (such as in their home or satellite sites) that do not visit the office or see customers on a regular basis.
• Employees who work outside only.
• Employees who successfully file for exemption to vaccination (and have proof of) using medical or religious reasons.

These employees, however, must still be included in the total company employee count when determining whether a company meets the threshold of 100 employees (where implementing the COVID ETS becomes required). Note that workers who work for a staffing agency will not be counted in the total employee count of the host company (but the agencies are under the same COVID ETS rule with their employees).

Joe's fav mask comes from HomeDepot

Key Deadlines

The pace of implementing this program is quite challenging, so hopefully, any short legal delays will help give companies more time to understand what they need to do.

Currently the standard has the following deadlines:

By December 4, 2021:

• Ask to see proof of vaccination for those that are fully vaccinated, and create a roster of vaccination status for employees.
• Create a company plan to implement the ETS COVID ruling.
• Allow employees to go get vaccinations (on the clock if they want) and allow paid time off for symptoms from the vaccinations.
• Communicate the company implementation plan, sharing/communicating a CDC document on vaccine efficacy, safety, and benefits of being vaccinated, and communicating that there are laws in place for protections for employees against employers for any retaliation and discrimination, and for employers that knowingly supplying false information about COVID or COVID protections.
• Require that all non-vaccinated employees wear face coverings while indoors at work or riding with another person in a vehicle for work.
• Require unvaccinated employees to be tested for COVID weekly, and for any employee that is diagnosed with COVID to promptly report results to the company (and stay off work proper duration).

By January 4, 2021:

• For companies that require vaccinations, employees need to be fully vaccinated by this date (2 doses of Moderna or Pfizer, or 1 dose of J&J)

 Impact of this Ruling

OSHA says two-thirds of workers in the US work for companies with 100 or more employees. The Corona Virus Emergency Temporary Standard is designed to protect these 84 million Americans from COVID transmission at work. OSHA expects that 23 million additional people will be vaccinated as a result of the ETS (whether through company mandates, or to avoid the inconvenience of weekly testing and keeping masks on at all times when indoors at work). They estimate the new ruling will prevent 6,500 deaths and 250,000 hospitalizations.

Thoughts

The new OSHA Emergency Temporary Standard to Protect Workers from COVID-19 has a broad reach and demands significant administrative action from large employers. The upside (huge reduction in deaths, hospitalizations, and lost work time) is certainly worthy of great effort on our part. The level of controversy on this topic, however, is at epic levels, and all parties seem to have some reasonable arguments for or against. The release date came as the latest wave of COVID (with the Delta Variant) cases is dropping off quickly, and during the same week Pfizer and Moderna announced (they are seeking approval) for a pill COVID patients could take that greatly reduces the chances of complications and hospitalizations.

Even with the COVID 750,000 deaths we have experienced in the U.S., the current decreasing COVID statistics, and polarizing nature of politics will likely affect public appetite to support this program. We’ve all heard the stories about arguments over masks at grocery stores and on airline flights. One company has raised this question: “I fear that unvaccinated employees will become angry with the company and will complain endlessly about the inconvenience of getting a weekly test and keeping their mask on… Maybe we should consider just mandating vaccinations across the board, knowing a few workers will leave?”

Whether the management, ownership, or board at your company is in favor of this this new rule or not, companies and HR personnel would be wise to put tentative plans in place now because when when/if the current stay on the ruling is overturned, the deadline for implementation will be unusually tight.

Enforcement

OSHA fines for serious violations of the ETS are up to $13,653, with the possibility of up to $136,532 for willful or repeated violations.

Related Links

https://www.osha.gov/news/newsreleases/national/11042021

https://www.osha.gov/coronavirus/ets/faqs

https://www.cbsnews.com/news/covid-vaccine-mandate-halted-osha-appeals-court/

Joe Eudy -President Impact Safety

www.safeimpact.com

Impact Safety exists to help manufacturing companies build and maintain effective safety programs that employees are proud to participate in. Our clients are primarily headquartered in Texas. We offer some on-line training offerings in addition to on-site services.