Within hours of its publication, the US Occupational Safety and Health Administration’s (OSHA’s) new Emergency Temporary Standard on Vaccination and Testing (ETS) was subject to several legal challenges, most notably in the US Court of Appeals for the Fifth Circuit this past weekend. Despite the lawsuits, employment lawyers are seemingly united in their advice that organisations should begin complying with the new rules.
Published on 4 November, the long-awaited 490-page regulation requires all employers with at least 100 employees to adopt a mandatory vaccination policy unless unvaccinated workers undergo weekly testing and wear face coverings at work. However, the unprecedented new rules, which affect more than 80 million US workers, almost instantly faced numerous legal challenges from Republican governors arguing the rules infringe on individual freedom.
Citing “grave statutory and constitutional issues with the mandate”, the Fifth Circuit Court of Appeals stayed the ETS on 6 November, pending an expedited review. The federal government had until 8 November to respond to the stay, with the petitioners given until 9 November to reply to the government’s arguments. Regardless of the Fifth Circuit’s eventual decision, lawyers expect even more suits soon, with a final decision from the US Supreme Court a real possibility.
“A number of states and employers – representing multiple industries – have already filed lawsuits in several federal circuit courts challenging the ETS. We believe there are more to come this week,” says Jay Seegers, a partner with BakerHostetler based in Florida. “There is no way to know at this time how, or how quickly, this will all play out in the legal system. Because the ETS has short deadlines that will pass in the next 30 to 60 days, employers will have to start now to ensure compliance by those deadlines while continuing to monitor legal developments.”
The ETS states that employers must comply with most provisions by 6 December 2021 and with the testing requirement by 4 January 2022. “Employers will have to move quickly to comply with the ETS’s requirements and short deadlines for preparing and implementing a written policy, informing employees of the requirements, obtaining vaccination proof from employees, and meeting records retention obligations,” adds Amy Traub, chair of BakerHostetler’s labour and employment group in New York.
So, why the legal challenges? Under section 6(c) of the Occupational Safety and Health Act, OSHA must determine “that employees are exposed to grave danger” and that an ETS is “necessary to protect employees from such danger”. With the Biden mandate covering about two-thirds of the US workforce, it is unsurprising that OSHA’s ETS is being put to the test.
“Congress set a high bar and OSHA has had trouble meeting it when facing challenges to past ETSs,” says Scott Hecker, a senior counsel at Seyfarth in Washington, DC. “The scope of the ETS is staggering, and there will be implications to pre-emption, accommodations, the statutory standard for issuing ETSs, worker hiring and retention, the supply chain, availability of covid tests, and innumerable other areas. We may know soon whether the ETS survives.”
Vaccine and testing costs
Although publication of the new rules comes almost two months after President Biden announced his vaccination mandate, employers are still left with many unanswered questions. This, Traub says, will result in employers “having to expend significant time and resources to get all of this accomplished by the required deadlines”. One key question in need of further exploration is the costs and implications of testing workers.
“While the ETS generally does not require employers to pay for costs associated with testing, there are still a lot of questions about how the testing process will play out in practice. Other federal and state laws concerning testing compensability may limit employers’ ability to allocate testing costs to employees – for example, an employer would need to pay for testing if it is part of an accommodation,” he says.
“Developing and implementing testing policies may not be an easy lift, as employers evaluate and wrestle with requirements like ensuring that employee tests are ‘not both self-administered and self-read’ and must be ‘observed by the employer or an authorised telehealth proctor’,” Hecker continues.
Employers covered by the ETS must also provide paid time for workers to receive a covid-19 vaccine and ensure workers have paid sick leave to recover from any side effects that prevent them from working. This, too, raises questions for employers.
“The distinction between providing paid time for getting vaccinated versus paid sick leave for recovery is interesting,” observes Hecker. “Employers can require employees to use available sick leave – or paid time off if an employer provides only one bucket of leave – for recovering from effects of the vaccine. But for receiving vaccine doses, the requirement is different, as banked leave isn’t available; rather, employers need to provide paid time of up to four hours for each dose.”
While employers will likely be pleasantly surprised that OSHA will not require them to gather vaccination records for workers whose full vaccination status was already documented before 5 November, the ETS does still require businesses to maintain employee vaccination documentation and testing results for all other workers. As with the holding of any medical records, the ETS rules have obvious data privacy implications for businesses.
“Protecting the privacy of employees’ medical information is of paramount importance, and employers will need to expend effort and resources to maintain confidentiality to the greatest extent possible within the limits of relevant laws,” says Hecker, who advises organisations to pursue existing policies to address data protection issues under the ETS.
“Now is a great time to revisit record-keeping practices to ensure they are effective, current, and compliant,” he adds. “Employers should consider minimising the number of people who ‘need to know’ the contents of the records and who are in the chain of possession, from review to collection to maintenance.”
However, employers may be subject to other laws and regulations concerning preserving medical records, explains Hecker. “The Americans with Disabilities Act requires that employers maintain employee medical records confidentially and separately from an employee’s personnel file.
“One difference in the ETS, as opposed to OSHA’s general requirements, is that employers do not need to keep employee testing results for the typical retention period of ‘duration of employment plus 30 years’, but only need to keep vaccine and testing records while the ETS is in effect. This shortened timeframe could limit potential exposure and inadvertent disclosure.”
Compliance and enforcement
Businesses that don’t comply with the ETS face significant fines. According to OSHA, employers can be hit with a $14,000 fine per violation, which would increase for serial offenders. However, with millions of workplaces covered by the rules, there are question marks over the level of enforcement OSHA can provide.
“As a small agency, OSHA will need to figure out how to increase its enforcement footprint when it cannot possibly be physically present in every workplace the ETS purports to cover,” says Hecker. “Expect OSHA to target bigger fish and then use the press to trumpet citations it issues under the ETS as a deterrence mechanism.
“On October 23, 2020, former assistant secretary for OSHA, David Michaels tweeted: ‘Every OSHA press release achieves as much compliance as 210 inspections.’ So, we can expect OSHA to publish detailed press releases when citing violations under its ETS. What OSHA will not do is retract those releases if it withdraws or modifies its initial citations, or if a court overturns them.”
If enforcement is, therefore, to largely fall on employers, how can organisations ensure compliance with the rules? “OSHA will likely issue an enforcement directive explaining how it plans to go about policing employer compliance with its ETS,” explains Hecker. In the meantime, employers should dig into the standard and its FAQs – and work with trusted counsel – to develop robust policies to ensure compliance with the ETS’s requirements.
“These efforts will require significant investment by cross-functional company teams because the ETS hits every part of the corporate landscape, including HR, legal, operations, pay/leave, communications, labour, and culture.”
With public health increasingly politicised in the US, vaccines have become a workplace flashpoint, meaning employers will need to tactfully navigate the many challenges ETS compliance presents, says Hecker.
“These challenges may vary in different industries and across differently sized employers. It may be that larger employers are better equipped to deal with implementation because they have HR, legal, and compliance frameworks already in place, though the logistics of operating at a national level will no doubt carry burdens of their own. On the other side of the coin, smaller employers may need more time to evaluate and execute where they do not already have significant and established compliance structures.”
With the federal agency wary of vaccination status fraud, employers must also work to limit false vaccine and testing records, explains Hecker. “OSHA also requires employers to communicate to their employees information about ‘criminal penalties associated with knowingly supplying false statements or documentation’, suggesting at least some of the compliance burden falls on employees – assuming employers are doing their part by implementing compliant policies.”
So, when it comes to compliance, will employers be held strictly liable for the actions of their workers? “We anticipate that OSHA will take into account an employer’s good faith attempts at compliance with the requirements of the ETS,” offers Seegers. “The important thing is for employers to start work now as the 30- and 60-day compliance deadlines have established a very tight window to get everything done.
“The vast majority of employers will make every effort to comply with the requirements of the ETS. The fact that a small number of employers may be unwilling or unable to comply with the ETS’s requirements should not affect its overall effectiveness in reaching OSHA’s goals.”