Does OSHA’s New Rule Have a Shot? Updates from the Fifth Circuit and BeyondAs most employers already know, OSHA’s newly announced COVID-19 Emergency Temporary Standard (ETS) is set to take effect January 4, 2022, and will require, among other things, that workers at U.S. companies with at least 100 employees be vaccinated against COVID-19 or be tested weekly. You can read more on the nuts and bolts of the rule here. And, as predicted, the rule is already facing multiple challenges across the country. In the Fifth Circuit Court of Appeals, a number of petitioners, including supermarkets, staffing agencies, a restaurant group and others, filed suit challenging OSHA’s ETS on November 5, 2021 – the same day the rule was announced. Other petitioners have filed challenges in the Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits.

So What Happened?

The Fifth Circuit challenge argued that the ETS exceeds the scope of OSHA’s authority and that the rule is unconstitutional. The lawsuit asked the court to stay enforcement of the ETS pending review by courts, a request that is echoed in each of the lawsuits challenging the rule. On November 6, 2021 – within a day of the lawsuit’s filing – the Fifth Circuit issued a per curiam order staying the new rule, writing that “the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.” The panel of three judges then ordered the Department of Labor to respond to the petitioners’ motion for a permanent injunction by 5 p.m. on November 8.

DOL Is Fighting Back

In its November 8 response (and an accompanying letter to the court), the DOL noted that it believes the petitioners request for a stay to be “premature,” pointing out that any harm cited by petitioners in their challenge is “months” away. The DOL also argued that the petitioners could not show that “their claimed injuries outweigh the harm of staying a Standard that will save thousands of lives and prevent hundreds of thousands of hospitalizations.” The brief states that “OSHA’s detailed analysis of the [ETS’s] impact shows that a stay would likely cost dozens or even hundreds of lives per day.” In contrast, challenges to the ETS argue that the administrative and financial burdens to comply with the rule are too high – under the rule employers could face fines of $13,653 per serious violation and up to $136,532 per willful or repeated violations.

The DOL’s November 8 response also argued that the stay was premature, particularly in light of the multiple challenges across the country, citing federal law (28 U.S.C. § 2112) that governs the procedure courts must follow when “multiple petitions for review of a single agency order are filed in at least two courts of appeals within ten days after issuance of the order.” Under these circumstances, the cases must be consolidated and transferred to a single circuit court, which is chosen through a lottery process. The lottery is expected to take place on November 16, 2021.

So Now What?

In the meantime, the Fifth Circuit’s stay remains in place (so the immediate deadlines are up in the air for now). Even if a court lifts the stay, the timing for employers to comply with the ETS rule will be tolled accordingly, so you’ll have a little time. It is likely the stay will remain in place while the multidistrict litigation is pending, however you don’t want to get caught unawares if the ETS is back on. Employers should keep an eye on not only the Fifth Circuit, but whatever circuit is chosen by the lottery and continue with any plans for compliance already in motion. You should probably think about what steps you will need to take if the ETS moves forward — a policy, identifying your employees who are not vaccinated, and how you might implement a testing program — just in case you need them on short notice.

It’s Finally Here: OSHA Reveals COVID-19 Vaccine Rule for Private SectorThe OSHA Emergency Temporary Standard is hot off the presses — now what? Undoubtedly, there will be lots and lots of discussion and legal challenges over the next several days. Although this is not an in-depth analysis, here are the nuts and bolts:

In general, the ETS:

  • Applies to employers with 100 or more employees company-wide, but not to employers who are covered by the federal government contractor requirements or a healthcare employer covered by the prior healthcare ETS.
  • Preempts state or local law limiting vaccination, masking, or testing requirements.
  • Does not apply to employees working from home or exclusively outdoors.
  • Effective dates:
    • 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination doses
    • 60 days after publication: Testing for employees who have not completed entire primary vaccination doses

What About Paid Time Off to Get the Vaccine?

As expected, the ETS requires employers to provide paid time off to employees related to the vaccine:

  • Up to four hours to get each dose of the vaccine.
  • Reasonable time/paid sick leave to recover from any side effects from the vaccine.

What About the Testing Option?

Employees who do not want to be vaccinated can be tested. Here are some general guidelines:

  • Employees not fully vaccinated must undergo weekly testing.
  • Employers do not have to pay for testing.
  • All employees (vaccinated or not) must notify the employer of a positive COVID-19 test and cannot come to the workplace until they meet the return-to-work criteria.

Although OSHA does not address the pay issue, with your non-exempt employees you need to remember that the DOL will be looking for compliance with the Fair Labor Standards Act. In general, (1) if you have your employees pay for the weekly tests, make sure it doesn’t take them below the minimum wage, and (2) consider whether the time they spend being tested counts as compensable time.

Masking Requirements

The ETS provides that employees who are not fully vaccinated must wear masks indoors or when they are in vehicles with a coworker, unless it creates a serious workplace hazard (e.g., interferes with the operation of equipment).

What About OSHA Reporting?

Yes, there are still reporting requirements related to employees with work-related COVID-19.  You need to report an employee work-related COVID-19 fatality within eight hours of learning about it. You also need to report an employee’s work-related COVID-19 inpatient hospitalization within 24 hours of learning about it.

Your Policy and Recordkeeping

You will need to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception if you are going to permit weekly testing. You will need to review proof of every employee’s vaccination status and keep records about it. You also will need to:

  • Maintain records/roster of vaccination status for your employees.
  • Make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee or anyone having written authorized consent from that employee.
  • Make the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace available to an employee or an employee representative.

What You Need to Provide to Employees

You will need to provide each employee — in a language and at a literacy level understandable to your employees — with the following:

  • Information about the requirements of the ETS and workplace policies and procedures established to implement the ETS;
  • The CDC document “Key Things to Know About COVID-19 Vaccines;”
  • Information about protections against retaliation and discrimination; and
  • Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Join Bradley attorneys Anne Knox Averitt, Stephanie Gaston, and John Rodgers on Monday, November 8 at 10 a.m. as they discuss the new rule in more detail.

Potential New Tennessee Law Prohibits Many Businesses from Requiring Proof of COVID-19 Vaccine, Requires Government Contractors to Apply for ExemptionThings just got more complicated in Tennessee for private employers wrestling with COVID-19 vaccines. On October 30, the Tennessee Legislature passed an omnibus COVID-19 bill that does not entirely line up with the current or expected federal mandates. While the bill is not law yet, the highlights include:

  • Don’t ask for proof of vaccine. The bill prohibits many private businesses in the state with one or more employees from requiring proof of COVID-19 vaccination status.
  • Federal contractors can seek an exemption. Federal contractors threatened with the loss of federal funds as a result of complying with the law can apply for an exemption from the prohibition on vaccine mandates.
  • Employees can sue. If an employee is “injured” as a result of a COVID-19 vaccine mandate, then the employee has a private right of action for injunctive relief and to recover compensatory damages and reasonable attorneys’ fees against the employer.
  • Limited exemption for healthcare providers. The only private businesses exempt from the bill’s prohibition on vaccine mandates are healthcare providers enrolled in Medicare or Medicaid that are subject to other requirements contrary to the state’s potential new COVID-19 law, assisted-care living facilities, homes for the aged, nursing homes, and residential hospice providers.

The bill has now been sent to Tennessee Gov. Bill Lee, who has not yet stated whether he will sign the bill, veto it, or let it sit on his desk for 10 days and let it become law without his signature (a possibility in the state).

Potential New Law Adds Compliance Questions

If the bill becomes law, it clouds a picture already plaguing employers. Covered employers will be prohibited under state law from requiring proof of COVID-19 vaccination status, unless the employer is a government contractor and receives an exemption, while the federal mandates will require employers to get proof of vaccination.

Meanwhile, the EEOC has stated that nothing under federal law prohibits a private employer from mandating employees receive the COVID-19 vaccine, so long as disability and religious accommodations are made. In fact, the EEOC recently updated its guidance (look at Section L) and provided a copy of its internal religious accommodation request form (in case you are looking for an example).  Furthermore, President Biden’s executive order requires government contractors to mandate that employees working on or in connection with a government contract be vaccinated. Perhaps even more importantly, OSHA is set to release an emergency rule any day now requiring employers with 100 or more employees to have their employees vaccinated or have them tested weekly.

Government Contractors Can Seek an Exemption

Government contractors seeking to apply for an exemption from the potential new Tennessee law would apply to the state’s comptroller of the Treasury, who will set up a process for seeking an exemption. Exemptions are good for one year. After that year, the government contractor must seek to renew the exemption for a subsequent one-year period. If the conditions change and the government contractor is no longer subject to potential loss of federal funding as a result of complying with the state law, then the contractor must notify the comptroller within 14 days.

We will of course be monitoring whether this bill becomes law in Tennessee and will provide updates when we know how Gov. Lee responds.