On September 9, President Biden introduced his plan for dealing with COVID-19 in the upcoming months. Since then, court challenges and political opposition have made it difficult for the plan to move forward. A team of legal experts discussed this new plan in depth last month in a webinar.
What is the Biden plan?
The president’s plan, called the Path Out of the Pandemic, involves a six-pronged approach:
- Vaccinate the unvaccinated
- Improve care for the infected
- Protect the vaccinated from the unvaccinated
- More test and mask requirements
- Keep schools open safely
- Protect economic recovery
The president’s goal was to implement this plan by having the Occupational Safety and Health Administration (OSHA) issue an emergency temporary standard (ETS). Within two months, the ETS was published and was technically in effect, according to Eric J. Conn, the OSHA chair at the Workplace Safety Practice Group at Conn Maciel Carey LLP.
What are the specifics of the ETS?
OSHA’s ETS involves stipulations such as paid time off (PTO) for getting vaccinated, paid sick leave for recovering from vaccination, and a written vaccination, testing, and face covering policy, which especially applies to unvaccinated employees, who are required to properly wear face coverings under this rule.
This policy applies company-wide to businesses in most industries with 100 or more employees, including part-time, seasonal, and all other employees, regardless of work location, with some exceptions, according to Conn.
The PTO for getting vaccinated only applies to those received during work hours after the effective date of the ETS, November 5. It’s capped at four hours, and it does not apply for booster shots. The cap on paid sick leave for recovery time is up to the employer, but must be reasonable, and OSHA suggests that two days would be compliant.
The ETS also includes a soft vaccine mandate, meaning that employees must show proof of full vaccination or submit to weekly COVID-19 tests, which must be negative for them to return to work.
The rule is highly specific about the kinds of testing employers are allowed to request, and that employers are not responsible for covering any costs associated with testing, barring employee accommodations, other laws, regulations, or collective bargaining agreements.
Conn said the ETS is clear about recordkeeping and preservation requirements, because employee vaccination status information is to be treated as medical information and kept separately from personnel files. Employers must keep a record of employee COVID-19 testing and results and determine an effective method of verification.
It is important to note that booster shots do not apply under this rule because the CDC’s definition of “fully vaccinated” only includes the primary round of vaccination, according to Conn. This rule has not changed since the approval of booster shots. Under this ETS, employers are only responsible for making sure their employees are fully vaccinated, therefore the booster shots do not apply.
There is also an information dissemination requirement, which includes the specifics of the ETS itself, the employer’s implementation policy, penalties for fraud, anti-retaliation requirements, and information about vaccine safety and efficacy.
Conn explained that though this move is quite unprecedented, it conveys the clear message that the purpose of this ETS is to incentivize people to get vaccinated.
“The administration wants to encourage vaccination and discourage the choice to remain unvaccinated,” said Conn, “and they’re using everything they can in the regulatory playbook to be able to accomplish that.”
Legal challenges to the ETS
After the rule was announced, more than a dozen legal challenges from different states, individual business, and religious groups were immediately filed. They were soon joined by more challenges from unions, worker advocates, and public health entities.
On November 6, the day after the ETS was published, the U.S 5th Circuit Court of Appeals, which holds jurisdiction over Texas, Louisiana, and Mississippi, issued a temporary administrative stay of implementation of the ETS. By November 12, the court granted a temporary restraining order (TRO) to stay the ETS until further judicial action. The 5th Circuit also ordered OSHA to take no further steps to implement or enforce the ETS, which OSHA accepted, until further judicial action has been taken.
In cases where there are this many challenges, there is a rule that says after 10 days, the Judicial Panel on Multidistrict Litigation can hold a lottery to see which federal circuit court of appeals is going to handle all the consolidated charges. The lottery was held and the case was given to the 6th Circuit Court of Appeals, but ultimately, it has a good chance of moving to the Supreme Court, said Conn.
What this means for employers
Despite the legal challenges, Conn recommends preparing these policies at the workplace to comply with the ETS:
- Develop the new written vaccination, testing, and face coverings policy that complies with the ETS, as that is what OSHA will most likely check and cite frequently.
- Prepare to communicate this new policy and the other required information by some form of mass communication. This does not have to be in a formal training setting.
- Make demonstrable requests to employees to provide vaccination status.
- Document the vaccination status information as you receive it, and keep an employee vaccination status roster, which, if necessary, would need to be produced for OSHA within four hours of request.
Conn believes there is a likelihood that the Supreme Court will allow the rule to continue. The Supreme Court has now had three opportunities to shut down other vaccine mandates, and they have ruled in favor of letting the mandates stand. his is because of the precedent set by other vaccine mandates, such as the rule involving employers providing the hepatitis B vaccine to employees who have occupational exposure to bloodborne pathogens, he added.
“The thing about this rule,” Conn said, “is that it is not even a vaccine mandate. It is essentially a testing rule that allows for a vaccine opt out.”
If you would like to read the full ETS, click here, and if you would like to read the facts sheet summary provided by OSHA, click here.