OSHA Stay Lifted; ETS Requirements

On Friday, December 17, 2021, the Sixth Circuit Court of Appeals lifted the stay on the Occupational Safety and Health Association’s (OSHA) Emergency Temporary Standard (ETS). This decision reinstates ETS mandates that must be adhered to by January 10, 2022. However, to account for any uncertainty created by the stay, OSHA has stated that it is exercising discretion as it pertains to compliance dates of the ETS. In order to provide employers with sufficient time to come to compliance, OSHA will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is “exercising reasonable, good faith efforts to come into compliance with the standard.”

This decision has already been appealed to United States Supreme Court. However, as it currently stands, the ETS mandates are in effect and covered employers should take steps to comply.

The ETS requires private employers with 100 or more U.S. employees to adhere to the following:[1]

• Employers must implement a vaccine policy or require employees to wear face coverings and test weekly as an alternative to vaccination. Any employee who elects to wear a face covering must be allowed to do so.
• Employers must ensure that if an employee is not fully vaccinated, he or she is tested at least weekly for COVID-19 or within seven (7) days before returning from work. Employers are not obligated to pay for the costs of testing. However, employers may be required to pay for testing under other laws, regulations or agreements. “Fully vaccinated” means two weeks after an employee has completed his or her second injection of a vaccination.
• Employers must require vaccinated employees to show proof of vaccination. This can be done by presenting a vaccine card, medical paperwork or attestation.
• Employers must provide employees with up to four (4) hours paid time to get vaccinated. They are also required to provide reasonable time and paid sick leave to recover from any side effects employees may experience from the vaccine.
• Employers must require employees to immediately notify them after receiving a positive COVID-19 diagnosis or test result. Upon notification, employers must immediately remove the employee who tested positive, regardless of vaccination status. Employers must require employees who are positive or diagnosed with COVID-19 to stay out of the workplace until they have met the criteria to return to work. Employers are not required to pay employees who are removed from work due to COVID-19.
• Employers must provide to their employees the following information in a readily understandable manner: ETS requirements, workplace policies and procedures established to implement the ETS standards, the CDC document “Key Things to Know About COVID-19 Vaccines,” information about protections against retaliation and discrimination, and information about laws that impose criminal penalties for knowingly supplying false statements or documents.
• Employers must keep a list identifying whether each of its employees are fully vaccinated, partially vaccinated, or not fully vaccinated because of a medical or religious accommodation or not fully vaccinated because they have not provided acceptable proof of vaccination status. Employers must also make the records of employee vaccination documentation and tests available.
• Employers must report any work-related COVID-19 fatalities and hospitalizations to OSHA within the following timeframes: Within 8 hours of learning of a work-related COVID fatality, and 24 hours of a work-related COVID inpatient hospitalization.

While the ETS issued by OSHA presently apply only to private employers with 100 or more employees, MIOSHA will be issuing its own rules that must, at a minimum, mirror the OSHA-issued ETS. Given that MIOSHA has previously issued COVID-19-related emergency rules that apply to public and private employers alike, it seems highly likely that MIOSHA will extend the ETS to cover public employers.

As noted above, the Sixth Circuit’s decision to lift the stay on OSHA’s ETS has already been appealed to the United States Supreme Court. Briefing on the appeal is due on 12/30, so it is highly unlikely that a decision will be rendered before the end of the year.

Keller Thoma will continue to monitor this situation, as well as other federal and state legislation and regulations with respect to COVID-19 as they become available. In the meantime, should you wish to discuss any of the above, please do not hesitate to contact your Keller Thoma attorney.

[1] Impact on public employers is detailed below.