New York Labor and Employment Law Report
Status Update on OSHA’s Vax or Test Mandate: Supreme Court’s Decision is Pending; First Compliance Date is Here; OSHA Clarifies Additional Questions on the Mandate
January 11, 2022
It seems that change is the only constant when it comes to OSHA’s Vax or Test Emergency Temporary Standard (ETS). Here is the current status:
The Supreme Court’s Decision is Pending
On Friday, Jan. 7, the United States Supreme Court heard oral arguments regarding the ETS at a special session of the Court.1 Challengers to the ETS requested that the Court issue a stay to stop the ETS before Jan. 10, stating that the mandate was overly broad and was a question that should be left to Congress or to be decided at the state-specific level. Though one cannot predict how the Court will rule, based on their line of questioning, a majority of the justices appeared to be skeptical of the ETS with Justice Alito quoting the late Justice Scalia when he described OSHA’s interpretation as “squeezing an elephant into a mousehole.” At the hearing, Justice Gorsuch and Justice Kavanaugh focused on the Major Questions Doctrine.2 The justices also focused on whether OSHA had the authority to mandate a vaccine that impacts not only the workplace, but also employees’ lives outside the workplace, and is, to quote Chief Justice Roberts, an “out-in-the-world issue.” Additionally, the justices floated the idea of issuing a brief administrative stay until they could make a decision. Solicitor General Prelogar, appearing for OSHA, obviously disagreed and said that the Jan. 10 deadline did not pose a major burden on businesses, except for imposing mask requirements. The Court has announced that it will be issuing “one or more opinions” on Jan. 13. It is unclear if one of these opinions will be with respect to the ETS. We are awaiting the Court’s decision and will keep you informed.
The ETS’ First Compliance Deadline is Here
The ETS’ first compliance deadline is Jan. 10, 2022. If they have not done so already, employers must prepare and implement an OSHA Vax-or-Test policy, determine vaccination status of all of its employees by obtaining acceptable proof of vaccination and maintain a roster of each employee’s vaccination status. Moreover, employers must ensure that unvaccinated employees wear face coverings, provide paid time off for vaccination and for vaccination side effects, require employees to provide prompt notice of a positive COVID-19 test or COVID-19 diagnosis and remove these employees from the workplace until they can return to work. Employers should keep in mind that state and local laws may already provide for mask and vaccine mandates, quarantine and isolation periods after testing positive for COVID-19 and prescribe paid leave for vaccination and vaccination side effects. In drafting OSHA’s ETS policy, employers must ensure that they are in compliance with these laws, as applicable.
OSHA Clarifies Questions on the ETS
Meanwhile, OSHA continues to clarify additional questions on the ETS on its website. In November 2021, OSHA addressed the question of how it will deal with employers who mandate vaccinations but still have a small number of unvaccinated workers. Here, OSHA stated that it will determine an employer’s good faith efforts to vaccinate their entire workforce. In making this determination, OSHA will consider the extent of the workforce that is fully vaccinated and the steps the employer has taken to protect unvaccinated workers. OSHA has provided a few examples of when it may exercise enforcement discretion such as: 1) worksites where almost all workers are vaccinated (e.g., approximately 95%) and the remaining unvaccinated workers have limited to no contact with others; 2) worksites with only a small portion of unvaccinated workers, when those who are unvaccinated have had the first dose and are scheduled to receive the final requisite dose; or 3) establishments with high employee turnover rates, and where consistent efforts are made to ensure that new employees are promptly incorporated into the employer’s vaccination policy.
Additionally, in December 2021, OSHA addressed questions regarding testing requirements specifically regarding the use of over-the-counter (OTC) tests, the issue of proctoring such tests and acceptable documentation of COVID-19 test results. Notably, a test cannot be self-administered and self-read, though there are limited exceptions to this requirement such as OTC COVID-19 tests that feature digital reporting of date/time stamped results.
In January 2022, OSHA also clarified the circumstances under which an employee vaccination roster that was prepared prior to Nov. 5 (the ETS’ effective date) would be sufficient to meet the ETS requirements. In this limited situation, where an employee’s fully vaccinated status has been documented prior to Nov. 5, the employer is considered to be compliant with the ETS if there is some form of written documentation. For example, in instances where an employee verbally self-reported their vaccination without providing any form of proof, such self-reporting would be acceptable where the employer had the employees provide their vaccine information on a dated form, or through individual emails retained by the employer or on an employer portal specifically created for employees to provide documentation status, or the employer created and retained some other means of documentation (e.g., a spreadsheet created prior to Nov. 5 documenting oral conversations with employees who confirmed their fully vaccinated status).
While we wait on the Supreme Court’s decision, employers must continue to make good-faith efforts to comply with the ETS’ requirements. In situations such as this, it is vital that companies and their leadership clearly communicate their approach and compliance with this new policy.
1 The Court heard oral arguments on challenges to a vaccine mandate for healthcare workers (issued by the Centers for Medicare and Medicaid Services) at this special session.
2 Typically, if a statute is silent/ambiguous on an issue, the Court defers to the administrative agency’s determination of the issue. However, when significant economic or political regulations are at issue, the Court has carved out an exception prior to deferring to an agency. Here, the Court must first ensure that the agency is in fact exercising the authority delegated by Congress.