Vaccine-or-test rule returns: What should businesses know?

On the heels of the announcement of mask and vaccine mandates by New York, California and other jurisdictions, and on the same night that another federal appeals court upheld the block of the federal contractor vaccine mandate, a three-judge panel of the United States Court of Appeals for the Sixth Circuit lifted the stay of the Occupational Safety and Health Administration’s (OSHA) “vaccine or test” emergency temporary standard (ETS) for private businesses with 100 or more employees.

The decision was issued on Friday, Dec. 17, 2021, and was a surprise to many following the litigation, particularly challengers to the ETS who were initially pleased when the often conservative-leaning Sixth Circuit “won” the random lottery selection on Nov. 16, 2021.

Highlights of the decision

Relying heavily on OSHA’s lengthy preamble to its Nov. 5 ETS, the Court stated that the virus continues “to spread, mutate, kill and block the safe return of American workers to their jobs” and “poses a particular and pervasive danger for unvaccinated workers in the workplace.”

In addition to rejecting various constitutional challenges to the ETS, the Court also concluded that based upon the “wealth of information in the 153-page preamble” it is “difficult to imagine more OSHA could do to justify its findings that workers face a grave danger in the workplace” and that it was not “appropriate to second guess that agency determination considering the substantial evidence.”

The Court also seemed to place weight on the evolution of the delta variant and the fact that the ETS provides “options” for employers — such as weekly testing and masking — that do not require businesses to implement a hard vaccine mandate.

What’s next in the OSHA ETS litigation?

Issued after the OSHA ETS’s first deadline (Dec. 6), and without any guidance from the Court regarding how its decision impacts the timing of the ETS’s original deadlines, the Sixth Circuit’s decision has left many businesses scratching their heads and wondering: Where do we go from here?

The answer to that question depends, in part, on the Supreme Court of the United States (SCOTUS), where emergency requests to halt OSHA’s ETS were filed by multiple parties within hours of the Sixth Circuit’s decision. The consensus seems to be that SCOTUS will decide the ultimate fate of the ETS. However, in the midst of what appears to be another spike in COVID-19 infections, there are no guarantees that the high court will agree to hear the case or stop OSHA’s implementation and enforcement of the ETS.

OSHA announces new deadlines

So what does this mean for businesses covered by the ETS? For starters, OSHA has already made it clear that businesses will have some breathing room before enforcement begins, and that it will not hold businesses to the original ETS deadlines. In the immediate wake of the Sixth Circuit’s decision, OSHA issued a statement that it will “not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9,” so long as covered employers are “exercising reasonable, good faith efforts to come into compliance with the standard.”

Businesses should take some steps to prepare

As a result of the Sixth Circuit’s decision, the ETS is now effective in the 29 states and territories that are covered by federal OSHA. Although the decision is already being challenged, and the future of the ETS is still uncertain, businesses should still continue — or start —getting ready behind the scenes. At a minimum, covered businesses should decide between the vaccine or weekly testing and mask options, prepare to collect acceptable forms of employee vaccination status as set forth in the ETS, and prepare written vaccine or weekly testing and mask policies as well as forms and related processes for those employees who will be entitled to accommodations due to medical contraindications, disabilities or religious objections.

Businesses that choose the weekly testing and mask option should start to develop their testing protocols. Protocols should include the type of test unvaccinated employees will be required to take each week, when the test must be administered, whether or not testing will be conducted onsite, how test results will be tracked and stored, and who will pay for testing costs.

Businesses that operate in states with OSHA-approved State Plans should consider taking similar steps to prepare, since State Plan safety standards must be at least as effective as the ETS in protecting employees from COVID-19 hazards. Given the number of states that are currently refusing to adopt the ETS regardless of whether the ETS ultimately survives the pending legal challenges, businesses in those states should also monitor whether the ETS is ultimately adopted in their jurisdictions.  Businesses should also be mindful of state and local laws and orders that already prohibit vaccine or mask mandates.

Weigh the risks

A business’ level of preparation will depend on its risk tolerance and will ultimately come down to each business’ evaluation of the risks of preparing vs. not preparing — such as the time, administrative effort, and cost to get ready for compliance weighed against potential OSHA fines, disruptions to operations, and the inability to comply on very short notice if the ETS survives. While the fate of the ETS is still uncertain and these risks vary by business and industry, failing to prepare in any way could be a risky proposition.

For more information on how to prepare, watch AmTrust’s November webinar, OSHA COVID-19 Vaccine and Testing Mandate: What Private Sector Businesses Need to Know and read the follow up FAQs.

Kelley Barnett is the sole labor and employment attorney for AmTrust Financial Services. She is a key legal and business advisor to the AmTrust executive team and AmTrust businesses in the U.S., U.K. and Europe on employee relations matters. Prior to joining AmTrust, Kelley’s private practice included counseling and representing employers, contractors, subcontractors, project owners and property owners on a wide variety of OSHA issues including training, compliance, OSHA inspections, accident investigations and OSHA and OSHA-approved State Plan enforcement proceedings. Kelley is also OSHA 30 certified.

Opinions expressed here are the author’s own.