Where Things Stand
Released on November 5 of last year, the Occupational Safety and Health Administration (OSHA)’s Emergency Temporary Standard (ETS) regulations required all employers with 100 or more employees to ensure their employees are fully vaccinated (all shots taken), although an employer may allow employees to submit weekly test results as an alternative, with an original compliance date of January 4.
Since the release of the ETS, a number of lawsuits were filed challenging its constitutionality, which saw disparate rulings by the U.S. Court of Appeals for the Fifth and Sixth Circuits regarding staying the regulation’s implementation. This resulted in the case being accepted by the U.S. Supreme Court, which has scheduled special oral arguments for Friday, January 7, on whether the ETS regulations should be stayed pending further consideration on the merits of the challenges.
While legally the ETS is in effect as of January 4, OSHA released the following policy statement: “To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA 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 an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
Given the pending legal decisions and the potential for U.S. Supreme Court action, many Capital Region businesses – if ultimately implemented and enforced, the ETS would impact over 550 area businesses and affect approximately 140,000 employees – are uncertain about how to proceed or what, if anything, they should be doing to prepare at this time.
While BRAC has consistently and strongly encouraged adoption of COVID mitigation measures like face-coverings and vaccinations, BRAC has also had deep concerns about the appropriateness and enforceability of the mandate, along with the burden placed on employers to be responsible for following OSHA’s confusing and potentially costly implementation procedures.
Be that as it may, and although it’s possible the U.S. Supreme Court may reimpose a stay or ultimately strike down the regulations, the fact is that the ETS is now in effect. And given the stakes involved – a maximum penalty of $13,653 for any single serious violation, and a further penalty of not more than $13,563 per day for a failure to abate the violation, as well as a total penalty of $136,532 for repeated and willful violations of OSHA rules – there are steps that the region’s larger employers should reasonably begin taking.
Next Steps and Resources
According to a summary of OSHA’s recent policy statement by the National Law Review, the timeline for important dates that employers should be aware of is as follows:
- Immediately, employers must start taking good faith steps to come into compliance with the standard.
- January 10, 2022, is the new deadline to have a written policy, require masking for unvaccinated employees and provide PTO for employees to get vaccinated.
- February 9, 2022, is the new deadline to require unvaccinated employees to begin testing weekly for COVID-19.
What this means in practical terms is that employers, by as early as next Monday, should attempt to have in place a mandatory vaccine policy, a sample template of which can be found here, and a vaccine, face-covering and testing policy, a sample template of which can be found here. To begin implementing the testing policy for unvaccinated employees by the February 9 deadline, employers would be prudent to also begin, if they haven’t already, asking for proof of employee vaccination status and conducting an assessment of which employees must undergo testing.
Which brings us to the thorny issue of testing, and the questions area employers are most seeking answers for prior to February 9. For a guidance, BRAC recommends that employers refer to OSHA’s 3-page overview on testing, found here, which explains, in addition to implementation information, that “OSHA intends to preempt any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing,” and that the “ETS does not require employers to pay for any costs associated with testing.”
Another common question employers have centers on the prevalence of workers who work from home or offsite. While these employees must be counted toward the 100-employee threshold, according to the OSHA overview: “The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.”
A complete Frequently Asked Questions (FAQ) page can be found here.
The OSHA overview and FAQ, however, do not address one of the country’s and Capital Region’s most pressing challenges: the availability of COVID tests. To assist, employers are encouraged to share the following resources with their employees:
- To find a COVID testing site near you, dial 211;
- Visit https://ldh.la.gov/page/3934 for the Louisiana Department of Health’s testing information page, which provides testing sites by parish;
- Visit https://www.walgreens.com/findcare/covid19/testing?ban=covid_vanity_testing, the LDH-Walgreens page with information about locations providing drive through tests at no cost to the patient.