RBS News

Written By: Evelyn P. Schonberg | 2021-12-20

The OSHA COVID-19 ETS Rule is Reinstated

The Background
The Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard Rule (“ETS”) was issued on November 5, 2021 and covered employers with 100 or more employees. It mandated that employees be fully vaccinated or submit to weekly testing and wear face coverings, the development of a COVID-19 vaccination policy and other requirements discussed in our article "The New COVID-19 Vaccination and Testing Mandate for Employers with 100 or More Employees". 

The Stay of the ETS Issued by the Fifth Circuit
On November 12, 2021, within a week after the ETS was issued, the United States Court of Appeals for the Fifth Circuit Court of Appeals stayed the ETS, as discussed in our article "OSHA COVID-19 Emergency Temporary Standard Suspended Pending Further Court Review".  

The Stay is Dissolved
Late on Friday, Dec. 17, 2021, the United States Court of Appeals for the Sixth Circuit dissolved the stay, thereby allowing the ETS Rule to take effect. In the 2-1 ruling, the Sixth Circuit concluded that the ETS Rule was within OSHA’s statutory authority to address a “grave danger” (COVID-19 transmission in the workplace) and also was “necessary” to address it, and that the constitutional arguments raised by the Plaintiffs were not likely to succeed.

What Happens Next
We are still not at the end of the line in the battle over the ETS Rule. Immediately after the issuance of the Sixth Circuit’s ruling, the Plaintiffs’ filed in the United States Supreme Court requests to stay the new order pending review by the Supreme Court. As of the writing of this article, the Supreme Court has not ruled on these requests. 

At the same time the Plaintiffs filed their request to stay with the Supreme Court, OSHA issued the following statement on its website in which it announced it was “gratified” that the court dissolved the previous stay and updated the compliance dates of the ETS Rule: 

"To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance."

Where To Go From Here?
January 10th is three weeks away.  At this point, I would recommend employers to review the four steps listed as described in our 11/5/21 article and listed below.

1. Determine whether the 100-employee threshold requirement is met. Keep in mind that the date of determining whether this threshold is met is January 10, 2022.
2. Determine whether the employer will allow all non-vaccinated employees to opt for testing and masks or only those with a medical or religious exemption. If the latter, a decision must be made as to what will occur to those employees who refuse to be vaccinated on non-medical and non-religious grounds.  
3. Determine whether or not to pay for the testing. Consider alternatives such as a hybrid policy of providing employer-paid testing at certain times and if an unvaccinated employee cannot attend, then the test must be taken at the employee’s expense. Contact your health insurance provider to determine whether such tests are covered. Contact your local pharmacy to obtain information as to costing, group discounts, etc.
4. Prepare a policy consistent with the ETS and distribute it to begin the education process for all employees.

In preparing the written policy, remember to download the OSHA  policy templates for Mandatory Vaccinations and Vaccination or Testing and Face Covering. By preparing for the potential implementation of the ETS, you will be assured that your company is ready to go as of January 10.  In addition, such efforts will also demonstrate that your business is exercising reasonable, good faith efforts to come into compliance with the ETS.

We will keep you updated as to the Supreme Court’s ruling on the requests for a stay currently pending.  In the event the ETS is stayed once again, we will all then await yet another, albeit final ruling on the ETS.  As is all too clear, the legal landscape surrounding the ETS remains volatile and subject to change at any time.

What About the Vaccine Mandates for Federal Contractors and CMS Health Care Workers? 
In so far as Ohio in concerned, both of these mandates remain stayed, pending further court review.  These are discussed in our article "Federal Contractor and Health Care Worker Vaccine Mandates Blocked in Ohio".

As usual, we will issue timely updates on the status of all of the mandates discussed above. If you have any questions or concerns, please contact Lynn Schonberg or any of our attorneys here at RBS.

• Lynn Schonberg - lynn@rbslaw.com - 216-643-4505