Employers Should Prepare for OSHA ETS, Though Court Battles Continue

Covid test kit
A federal appeals court last week reinstated a controversial OSHA rule requiring employers to mandate COVID vaccines or weekly testing for employees. / Photo by Annie Spratt via Unsplash.

The 6th Circuit Court of Appeals on Dec. 17 lifted a stay on the Biden administration’s vaccine-or-test mandate for large employers, surprising many who expected the conservative-leaning court to block the controversial policy.

In a 2-1 decision, the Ohio-based federal appeals court dissolved a stay imposed by the 5th Circuit to block the Occupational Safety and Health Administration’s emergency temporary standard on COVID-19 vaccination and testing. The ETS, first announced in early November, requires private employers with more than 100 employees to ensure their employees are fully vaccinated or require workers to produce a negative test on a weekly basis.

But Friday’s ruling won’t be the last word on the OSHA standard. The U.S. Supreme Court is now considering several emergency requests by ETS opponents to stay the rule until a final decision on its validity is reached.

Although the court battles wage on, employers who take a wait-and-see approach might be caught flat-footed if the ETS ultimately stands. “I think waiting until you get a final decision on this issue is not a good idea,” said Sherman & Howard member Patrick Miller. “Because, as we’ve seen, it’s been kind of a ping pong, back-and-forth as to where it is. So I think it’s always good to be prepared.” 

There’s plenty employers can do now to prepare for upcoming compliance deadlines, Miller said, such as determining the vaccination status of employees, creating vaccination policies and notifying employees about new policies.

Employers have a bit more time to comply, as long as they make a good-faith effort to follow the rule. OSHA said it won’t issue citations for non-compliance with weekly testing requirements before Feb. 9, extending the deadline from Jan. 4. Employers will have until Jan. 10 to follow the other requirements, including implementing vaccination policies and creating vaccination status rosters.

“I think that [OSHA] won’t be coming down real hard on employers who are making that good-faith effort,” Miller said, adding that “to the extent you see enforcement activity, they might direct it more towards those employers who just are basically thumbing their nose at the ETS.” Employers who try to defy the rules could face a willful violation, he added, which can result in substantial penalties.

While the OSHA rule has been referred to as a “vaccine mandate,” the 6th Circuit noted that employers have options. “The ETS does not require anyone to be vaccinated,” said Circuit Judge Jane Stranch, writing for the majority. “Rather, the ETS allows covered employers — employers with 100 or more employees — to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces.” 

Employers that don’t want to mandate the vaccine may require unvaccinated employees to wear a mask and test for COVID weekly, wrote Stranch. They can also require unvaccinated employees to work exclusively from home, she wrote, and those who work exclusively outdoors are exempt from the ETS.

“I think, administratively, the testing option is a little bit more difficult than the vaccine option,” Miller said. “The vaccine option is kind of a ‘one and done’ where they present their status and there you are.” With testing, he added, employers must decide how employees should provide their weekly COVID test results. “Some of the questions that come up are: Do you have everybody come in on a Monday and provide their test results? What about employees with staggered schedules and different schedules?” Miller said.

Employers must also make sure their employees are taking the right tests. For a test to be acceptable under the ETS, it must be FDA-approved and cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. “Basically, what they want to avoid is the home test where no one is monitoring it,” Miller said. “You can’t do the home test that’s sent in to a lab.”

According to OSHA, point of care tests, proctored over-the-counter tests, tests that are processed in a lab and tests that employers perform or observe are allowed under the rule. Employers are not required to pay for any costs associated with testing under the new rule, though they may do so if they choose and, as Miller noted, some larger employers are even arranging on-site testing for employees.

Employers that require vaccines will need to consider requests for accommodation. “We’re seeing more religious requests for accommodation than we’ve ever seen before in employment law,” Miller said. Requests should be handled on a case-by-case basis, he added, and the employee’s belief must be sincerely held. “That’s hard to dispute in most cases, unless you have some sort of evidence that somebody is pulling your leg as to what their real beliefs are.”

To deny a religious accommodation, employers must show the request imposes a “more than de minimis” cost. “If providing that accommodation poses enough of a problem for the employer in terms of scheduling or presence around other employees or the public, employers have a lot of leeway to deny those accommodations, and that’s happening in a lot of cases,” Miller said, adding he expects religious accommodations will lead to a lot of litigation.

Businesses, trade groups, labor unions and about two dozen states sued to block the ETS. The opposition has been outspoken, and headlines have highlighted the controversy over the rule. “You hear about the employers who don’t want these mandates forced upon them or don’t want them being forced to make these decisions as to vaccines versus testing,” Miller said. “But it’s important to note there are a lot of employers out there who welcome these things and have been wanting to [do them] in order to keep their workplaces as safe as possible.”

Employees also vary in their attitudes toward workplace vaccine mandates. According to a Gallup survey from earlier this month, 43% of U.S. workers “strongly favor” their employer requiring employees to get vaccinated, while 29% said they “strongly oppose.” Among those who felt less strongly, 12% said they “favor” the policy, 6% said they “oppose” and 11% said they neither favor nor oppose.

Employers that want to impose a vaccination requirement don’t need to wait for the outcome of the OSHA litigation to do so. “Employers do have the power on their own to mandate these sorts of things without OSHA’s direction to do so,” Miller said.

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