Attorneys Nicole Forbes and James P. Reidy | December 21, 2021
Large Employers Need to Proceed, for Now, With Plans to Implement the ETS
(Other Employers (e.g. Healthcare and Federal Contractors) Should Stay Tuned)
By now you may have heard about the most recent Friday surprise regarding the Biden Administration’s Path Out of the Pandemic vaccine mandate. On Friday, December 17th, the U.S. Court of Appeals for the Sixth Circuit lifted the national stay on the mandate covering large (100 or more employees) employers. The Court’s 2-1 decision lifted a stay that has been in place since November 12th when the Fifth Circuit ruled that the OSHA Emergency Temporary Standards (“ETS”) “grossly exceeded” the agency’s statutory authority. This most recent decision has covered employers wondering what to do now.
As you may recall the ETS requires a number of things of covered employers including: creating and implementing a written COVID-19 vaccination policy, collecting and retaining proof of employee vaccination, maintenance of testing records, if employers allow employees to opt out of the vaccine with weekly testing, face coverings for unvaccinated employees and keeping employees who test positive or have COVID-19 symptoms out of the workplace. In keeping with EEOC requirements, covered employers also have to consider medical and religious exemption requests and engage employees who request one of those exemptions in an interactive process to determine if the employee could still perform his/her job with a reasonable accommodation.
Under the ETS covered employers originally needed to have their employees fully vaccinated (excluding employees with approved exemptions and those who opted out of plans with that option) by January 4, 2022.
OSHA, suspended the ETS, after the Fifth Circuit decision and while the Sixth Circuit took the matter up. After the Court decision last week OSHA announced that it will not issue citations and fines for non-compliance before January 10, 2022. Meaning OSHA has extended its compliance deadline by just over a week from the original deadline. OSHA also signaled a relaxed enforcement standard by saying it will also not issue citations for non-compliance with testing requirements before February 9, 2022 for covered employers who demonstrate good faith efforts to comply with the ETS standards.
Following the Sixth Circuit’s decision several groups filed immediate appeals with the U.S. Supreme Court. Under the High Court’s procedure for emergency appeals (including a request for a stay from a Circuit Court) these petitions go to the Justice assigned to that Circuit. In this case, Justice Kavanaugh is assigned to that Circuit. Justice Kavanaugh has requested that the Biden Administration respond to the issued raised in the appeals from groups seeking to halt the implementation of the large employer mandate. The deadline for the Administration to respond to those appeals is December 30, 2021. The full court could consider the case in early 2022. In the meantime employers covered by the ETS should proceed with the implementation of their policies.
What about employers covered by the healthcare or federal contractor vaccine mandates?
In separate court decisions the vaccine mandates applying to covered healthcare employers and federal contractors were also blocked by federal courts. The ruling by the Sixth Circuit has no impact on those cases but those covered employers are asking the same question, “What should we do now?”
What Should Employers Covered by ETS, CMS for Healthcare and Federal Contractors Do Now?
- First, your organization should determine if it is a covered employer under any of these guidances or standards, and if so, under which category under the Plan.
Details on the applicable mandates for large private employers are discussed in this recent client alert: https://www.sheehan.com/news/here-at-last-osha-vaccination-rules-issued-for-large-employers/
Details on the applicable mandates for healthcare facilities are discussed in this recent client alert: https://www.sheehan.com/news/healthcare-sta-must-be-vaccinated-by-january-4-2022-cms-issuesinterim-final-rule-with-comment-period/
Details on the applicable mandate for federal contractors and subcontractors, are discussed in this recent article: https://read.nhbr.com/nh-business-review#2021/10/22/?article=3886293
- If your organization is a covered employer, you should familiarize yourself with the relevant guidance or standards and consider your options in the event the applicable mandate is reactivated so that you are prepared to comply with the Plan as quickly as possible if short timeframes are imposed.
- If your organization is covered by the ETS you should move quickly to finalize your policy, put document retention systems in place and update your employees as to their obligations and the consequences for noncompliance.
- If your organization is a covered employer under the other mandates (e.g. CMS covered or covered federal contractor), you should also consider developing a plan for implementing those policies if reactivated, including preparing appropriate communications with your employees in the event the stays on those mandates are lifted.
- If your organization is a covered employer but the applicable mandate has been stayed, you could still proceed with a private vaccine mandate of your own. This was an option even before the President announced the Path Out of the Pandemic Plan. EEOC guidance provides that vaccine mandates may be adopted if they are job related and consistent with business necessity. EEOC also says that those policies should provide for possible medical and religious exceptions.
- If you currently have a vaccine mandate in place or would need to adopt one, if reactivated, be sure that you have a process to review and evaluate exemption requests (medical and religious) as outlined in EEOC vaccine mandate guidance.
- While waiting to learn the fate of the applicable regulations, be sure your COVID-19 screening and workplace safety policies are up to date with CDC guidance, OSHA and EEOC standards, and state law requirements.
- You should consult an employment lawyer if you have questions or need guidance on steps to be taking now, or if the applicable mandate is reactivated.
There remain many unanswered questions about the Administration’s mandate and their survival from the ongoing legal challenges. We will provide additional guidance as more information becomes available.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Sheehan Phinney’s employment group is available for questions about how these developments may impact your organization.
Acknowledgement: Our thanks to Attorney Karen A. Whitley for her assistance with this client alert.