Emergency Temporary Standard (ETS)

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OSHA issued its Emergency Temporary Standard (ETS) in early November. A series of challenges quickly ensued, resulting in a stay of the ETS and a consolidation of the cases before the Sixth Circuit. On December 17, 2021, the Sixth Circuit lifted the stay. OSHA has indicated that it will delay enforcement of the ETS deadlines…

On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay previously placed on OSHA’s so-called “vaccinate or test” Emergency Temporary Standard (ETS). Consequently, covered employers with 100 or more employees will now be required to comply with the ETS under the newly announced deadlines of January 10, 2022 for all non-testing requirements…

As noted in our prior post regarding the Sixth Circuit handling the challenges to the OSHA Emergency Temporary Standard (the ETS), several of the parties targeting the OSHA ETS filed or joined various petitions requesting an initial hearing en banc. On December 15, 2021, the Sixth Circuit denied the various petitions for initial hearing en banc because there was not majority support of the active judges. It appears that it was a very close call – of the 16 active judges, eight were for en banc and eight were against it. As a result, the case will proceed before the typical three-judge panel. The three judges have been assigned; however, we do not know who they are at this point.

Judge Moore issued a concurring opinion recognizing the inefficiencies that go along with an en banc hearing. The concurrence noted that the case “require[s] focused consideration by a devoted panel,” and that an en banc hearing “would have strained the resources of the sixteen active judges.”

There are two dissenting opinions. Chief Judge Sutton’s dissent recognizes that, with respect to the initial hearing en banc, “[t]his is an extraordinary case, suitable for an extraordinary procedure.” But he also notes that the Sixth Circuit “likely will not be the final decisionmakers in this case, given the prospect of review by the U.S. Supreme Court.”   
Continue Reading OSHA ETS: Sixth Circuit denies initial hearing en banc

On November 16, 2021, the Sixth Circuit was selected via a lottery to hear the consolidated challenges made against the recent OSHA Emergency Temporary Standard (the ETS). As background, on November 5, 2021, OSHA published the ETS that would require most private employers with 100 or more employees to establish either (1) a mandatory vaccination policy requiring that all covered employees be fully vaccinated against COVID-19, or (2) a vaccination policy that requires that employees choose between being fully vaccinated or submitting to regular and recurring COVID-19 testing.

While all eyes had previously been on the Fifth Circuit, it is now the Sixth Circuit that’s in the spotlight. Not surprisingly, there has been a flurry of activity in the case. There are currently two main issues pending before the court that will certainly shape the dispute: (1) several petitioners have asked for an initial hearing en banc (i.e., requesting that the full court – and not just a three-judge panel – decide the case initially); and (2) the government has asked the court to dissolve the Fifth Circuit’s stay.
Continue Reading OSHA COVID-19 rule: Sixth Circuit case status update

Next up in the series, Reed Smith lawyers continue the discussion regarding the OSHA ETS that requires companies in the U.S. with 100 or more employees to implement either a mandatory vaccination policy or a policy that allows employees to choose between vaccination or COVID-19 testing. Specifically, the chat focuses on the current status of…

Reed Smith’s Labor & Employment group is proud to announce the launch of our video chat series, Employment Law Watch: Real Time. The series will focus on new developments and hot topics that employers around the world need to know about. Tune in for regular 10 to 15 minute chats led by the firm’s labor…

Since its publication on November 5, 2021, employers have been reviewing the Occupational Safety and Health Administration’s (OSHA) 490-page Emergency Temporary Standard (ETS) and taking steps to create and update their employment policies to comply with it.

The National Labor Relations Board (NLRB or the Board) has added another item to the to-do lists of those employers covered by the ETS with unionized workforces. On November 10, 2021, NLRB’s operations management division issued a memo reminding unionized employers of their bargaining obligations under the National Labor Relations Act in connection with policy changes being contemplated in light of the ETS.Continue Reading Complying with OSHA’s ETS? Don’t forget about your duty to bargain, says NLRB

Update – On November 6, 2021 the Fifth Circuit Court of Appeals issued a temporary stay of the ETS.

On November 4, 2021, OSHA issued an unpublished version of its long-awaited Emergency Temporary Standard (ETS) as to COVID-19 vaccination or testing requirements covering most private employers with 100 or more employees. The ETS is scheduled to be published and take effect on November 5, 2021. As summarized below, the ETS requires covered employers to establish either (1) a mandatory vaccination policy requiring that all covered employees be fully vaccinated against COVID-19, or (2) a vaccination policy that requires that employees choose between being fully vaccinated or submitting to regular and recurring COVID-19 testing. It should be noted that these are “minimum” requirements, such that employers are not prohibited from establishing more stringent policies, and do not supplant the requirements of a collective bargaining agreement.

Effective date

Employers will have 30 days, or until December 5, 2021, to comply with all non-testing requirements of the ETS, and 60 days, or until January 4, 2022, to comply with testing requirements for employees who have not received all doses required for primary vaccination. Under the Occupational Safety and Health Act (OSH Act), an ETS serves as a proposal for a permanent standard, and the OSH Act calls for the permanent standard to be finalized within six months after publication of the ETS (29 U.S.C. 655(c)(3)).

Covered employers

For purposes of the ETS, a covered employer is one with 100 or more employees “at any time” during the effective period of the ETS. This means that employers who meet this minimum threshold as of the effective date of the ETS are covered throughout the effective time of the ETS, even if the employer later falls under the minimum employee threshold. For any employer that falls short of 100 employees as of the effective date but reaches the threshold at any point that the ETS is in effect, the employer will become subject to the ETS requirements as of the date they meet the threshold and remain covered for the remaining duration of the ETS, even if the employer later reduces staff such that it falls under the threshold. To calculate the number of employees, all part-time and full-time employees must be accounted for, regardless of where they work (including those that work at home). However, independent contractors are not included in the calculation. Also, employees supplied to a customer site by staffing companies only count toward the staffing company’s employee total; they do not count toward the customer company’s total. Similarly, as to franchisee-franchisor relationships, their respective employees count only toward their own calculation, not the other party’s employee count (i.e., a franchisee’s employees count only toward the franchisee’s calculation, and not the franchisor’s count). The ETS excludes: (1) Employers that are covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; and (2) certain settings where any employee provides healthcare services or healthcare support services.

Excluded employees

The ETS specifies that the requirements apply only to employees who visit an employer’s indoor locations where other people are present. Employees who work exclusively at home, outdoors, or at a site where the employee is the only person present are not required to comply with the employer’s requirements. However, should such an employee later be required to, or seek to, visit one of the employer’s indoor facilities, the employee must satisfy the vaccination or testing requirements.

Reasonable accommodations/Exceptions to policy

The ETS requires employers to provide reasonable accommodations and exceptions for employees (i) for whom the vaccine is medically contraindicated; (ii) for whom medical necessity requires a delay in vaccination; or (iii) who are entitled to a reasonable accommodation due to a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

As to the vaccination requirements, the employer is required to provide an employee with time to obtain and recover from a vaccination. Specifically, the employer must provide up to four hours of paid time, inclusive of travel time, at the employee’s regular pay rate, to obtain a vaccine. The employer must also provide reasonable paid time off to recover from any side effects of each dose of a vaccine.
Continue Reading OSHA issues COVID-19 ETS for large private employers