“Care, Protect, Grow”: The U.S. Compliance Blog

Supreme Court Blocks ETS…Now What?

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As has been widely reported, on Wednesday, January 13, the Supreme Court has reinstated the injunction or “stay” blocking enforcement of the OSHA Vaccine/Testing Emergency Temporary Standard (ETS) by a 6-3 decision. This decision by the Supreme Court makes it very unlikely that the ETS will ever be enforced before it would be due to expire on May 5, 2022. The ruling by the Supreme Court, however, does not prevent OSHA from developing and implementing a permanent Covid-19, “infectious disease,” and/or “airborne/aerosol transmissible disease” standard at some point during 2022.

A published notice of proposed rulemaking for an “infectious disease” standard originally developed in 2010 has been updated and indicates that it will be released in April 2022. The public announcement for the proposed rule states:

“Health care workers and workers in related occupations, or who are exposed in other high-risk environments, are at increased risk of contracting TB, SARS, Methicillin-Resistant Staphylococcus Aureus (MRSA), COVID-19, and other infectious diseases that can be transmitted through a variety of exposure routes.”

OSHA has previously deemed several industries outside of healthcare, including several types of manufacturing, as “high-risk” for exposure to Covid-19—and they are likely to be included in the enforcement of this proposed rule.

The decision by the Supreme Court to block the ETS also does not mean OSHA will cease enforcement related to Covid-19 in the workplace. OSHA will continue to focus its resources on its Covid-19 National Emphasis Program (NEP) by enforcing all existing standards for hazards related to Covid-19.

U.S. Secretary of Labor, Marty Walsh, in part of his statement following the Supreme Court Ruling blocking OSHA’s ETS, stated:

“Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.”

All clients should continue to be aware of and comply with all Covid-19-related aspects of the following standards:

  • 29 CFR Part 1904, Recording and Reporting Occupational Injuries and Illness.
  • 29 CFR § 1910.132, General Requirements – Personal Protective Equipment.
  • 29 CFR § 1910.134, Respiratory Protection.
  • 29 CFR § 1910.141, Sanitation.
  • 29 CFR § 1910.145, Specification for Accident Prevention Signs and Tags.
  • 29 CFR § 1910.1020, Access to Employee Exposure and Medical Records.
  • Section 5(a)(1), General Duty Clause of the OSH Act.

 

Please also continue to follow current CDC, local Department of Health, and State/Federal OSHA Covid-19 guidance for the workplace. This includes maintaining documented Covid-19-related policies, procedures, and a risk assessment such as those found in the U.S. Compliance – Infection Control and Prevention Plan. There are also several states with state-sponsored OSHA plans that have Covid-19-specific standards that continue to be enforced, including some with recent updates.

Monitor our Covid Resource Center for regular updates and sign-up to participate in our upcoming free webinar on Monday, January 24, for an update on Covid-19 in the workplace. See additional webinar information below:

Free Webinar: Management of the Covid-19 Pandemic Environment in 2022

Managing Covid-19 in the workplace has many aspects to consider that all require a constant refresh of information. With the current tidal wave of infections, CDC guidance changing frequently, and the recently blocked OSHA Vaccine/Testing ETS as a template for a modified permanent standard that could be issued this year, there are multiple challenges for businesses in this barely two-year-old arena. This webinar will focus on Covid-19 current events, changes in workplace guidance, and scenarios for future regulation.

OSHA Vaccine/Testing ETS Now in Effect

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The OSHA Vaccine/Testing Emergency Temporary Standard (ETS) is now in effect following the decision by the 6th Circuit Court to lift the injunction blocking implementation on December 17. Following an immediate appeal of the decision by the 6th Circuit Court to reinstate the ETS, the Supreme Court has decided to take the case and will hear oral arguments regarding the ETS on January 7 with a decision likely to follow during the week of January 10. There is no way to predict what the Supreme Court will do regarding the ETS at this point. All six of the prior Covid vaccine mandate cases that were appealed to the Supreme Court have been decided by a single Justice without hearing oral arguments or issuing a written opinion, and all were decided in favor of the vaccine mandates. This case, however, is different from the prior cases as it is a potential nationwide requirement with broad implications. This is evident through the referral to the entire court by Justice Kavanaugh.

U.S. Compliance has created several resources to help ensure that our clients have the best opportunity to comply with the ETS as the OSHA deadlines are rapidly approaching. We recommend that our clients move forward with preparations and some action towards complying with the ETS to satisfy OSHA’s expectation of “good faith efforts” to avoid a citation while the legal process continues and with the knowledge that it will likely not be resolved prior to the first deadline of January 10.

This message regarding the ETS and the new deadlines for compliance was published on the Federal OSHA – Covid website following the decision by the 6th Circuit Court:

“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. 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.”

Revised Federal OSHA Deadlines to Keep in Mind

  • January 10 – All administrative aspects of the OSHA Vaccine/Testing ETS listed in steps 1-4 below
  • February 9  – Initiate testing process for all remaining unvaccinated employees

 

5 Key Steps to Initial Compliance With the ETS

  1. Determine if the ETS applies to your company (100 employee threshold)
  2. Create a roster of employees that includes their vaccination status and gather the related documentation
  3. Develop related policies regarding mandating vaccination or testing/masking
  4. Provide training and information required by the ETS to your employees
  5. Plan to provide or have applicable employees provide a weekly negative Covid-19 test result if they are unvaccinated and document the results

Covid-19 ETS Resources

The following documents are available via your advisor or for your convenience and immediate access at the U.S. Compliance Covid Resource Center webpage to support compliance with the ETS:

  • OSHA Vaccine/Testing ETS Compliance Checklist
  • Vaccine Mandate Policy Template
  • Testing/Masking Policy Template – for clients that are not implementing a vaccine mandate
  • Vaccination Exemption Forms – for both medical and religious reasons for clients implementing a vaccine mandate (included in Infection Control & Prevention Appendix)
  • Vaccination Affidavit Form – for employees that are vaccinated but cannot produce acceptable proof of vaccination
  • Unvaccinated Employee Status Form – for employees to indicate that they are either not vaccinated and do not intend to be vaccinated, that they intend to be vaccinated and will be by a certain date, or that they do not wish to reveal their vaccination status
  • Excel version of an Employee Vaccination Matrix – to fulfill the “roster” requirement
  • ETS compliant testing resources are available through our partner PreScouter DX, including approved OTC home rapid antigen tests, PCR “pool” testing, and individual testing using saliva samples sent to their lab. If you would like to receive information on testing, please reach out to COVIDtesting@uscompliance.com.

We will continue to monitor for updates from the Supreme Court on the OSHA Vaccine/Testing ETS and the CMS Healthcare Vaccine Mandate. We are also monitoring the 11th Circuit Court for updates regarding the Federal Contractors vaccine mandate, as well as OSHA state program adoptions of the ETS, and updates to existing state OSHA program Covid-related standards.

For our clients in the healthcare industry, the OSHA Healthcare ETS was set to expire on December 21. The OSHA website has now been updated to reflect the expiration of the Healthcare ETS in part. The record-keeping aspects of the standard remain in effect and enforceable. The exemption from compliance with the new OSHA Vaccine/Testing ETS will no longer apply to qualifying healthcare employers with more than 100 employees. This is further complicated by the CMS Healthcare Vaccine Mandate that is currently in effect in 26 states pending a hearing before the Supreme Court, also currently scheduled for January 7. In those states where the mandate is in effect, the CMS Healthcare vaccine mandate will take precedence over the OSHA Vaccine/Testing ETS. In those states where the CMS Vaccine Mandate is blocked by the courts, the OSHA Vaccine/Testing ETS will apply to applicable healthcare employers with more than 100 employees pending action by the Supreme Court.

Please let your advisor know if you have any questions. Our Covid Response Team is also available to assist if needed.

Update on the OSHA Vaccine/Testing ETS

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On Friday, November 5, 2021, Federal OSHA published a new Emergency Temporary Standard (ETS) related to Covid-19. The ETS included several new requirements for all applicable employers in Federal OSHA states. For the facilities in states with state-operated OSHA programs, the state program would be legally required to adopt the Federal standard or an equivalent that is “at least as effective” as the Federal standard within 30 days of the publishing date.

The Federal ETS included two significant deadlines for compliance:

Within 30 days

The majority of policy and related documentation elements, including an employee vaccination status “roster,” are required to be in place by December 5, 2021.

Within 60 days

Initiate a weekly Covid-19 testing process for all applicable employees that have not received their final dose of a primary vaccine by January 4, 2022.

Key Elements

  • All applicable employers with 100 or more employees company-wide on or after November 5, 2021
  • A “roster” of all current employees and their vaccination status, inclusive of supporting vaccine documentation
  • Vaccination supportive policies, including paid time to be vaccinated and recover from any adverse effects
  • Weekly documented Covid-19 viral test results for all applicable unvaccinated and partially vaccinated employees after January 4, 2022
  • A policy requiring face coverings for all employees who are not “fully” vaccinated
  • A policy regarding actions to be taken following an employee’s positive Covid-19 test result

As expected, the ETS was legally challenged in several courts including the U.S. 5th Circuit Court of Appeals in New Orleans the day it was published. The next day, Saturday, November 6, the 5th Circuit “stayed” the new standard temporarily and issued a deadline of 5 pm on Monday for the government to respond. Following the response from the Department of Labor, a 3-judge panel of the 5th Circuit deliberated and decided to make the injunction blocking the new rule permanent on November 12.

In the ten days following the November 5 publishing of the ETS, lawsuits were filed in 12 U.S. Circuit Courts of Appeal. This scenario of multiple lawsuits regarding the same issue in more than one Circuit Court initiates a process whereby a lottery is held to select one court to hear a combined case for all of the associated lawsuits. That lottery took place on Tuesday, November 16, and the U.S. 6th Circuit Court of Appeals in Cincinnati, Ohio, was selected to hear the combined case.

At this point, implementation of the ETS is still blocked by the injunction from the 5th Circuit Court, and there is no way to know if the ETS will survive the ongoing legal process and go into effect.  When there is a final decision by the lottery selected 6th Circuit Court, the decision will very likely be appealed to the Supreme Court. A justice of the Supreme Court (Justice Kavanaugh in this case) will decide to either take the case, let the lower court’s decision stand, or refer that initial decision regarding whether or not to take the case to the entire court. Only after all of that and depending on the Supreme Court outcome will anyone “know” if the ETS will go into effect and be enforced and if the existing deadlines for compliance with the ETS will remain as originally indicated or be extended.

The Biden Administration is encouraging all applicable employers to proceed with preparing to comply with the requirements of the ETS while the court case is heard and a decision is made. However, subsequent to the decision by the 5th Circuit, the message below was posted on the OSHA ETS website acknowledging that they will comply with the current injunction.

“On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

It is still possible that the ETS will go into effect and that the deadlines of December 5 and January 4 will be enforceable by OSHA. It is also possible that the ETS will be permanently blocked by the courts, as has happened to 5 of the 11 prior Emergency Temporary Standards published by OSHA in the 50-year history of the agency.  Each employer will have to calculate their own tolerance for regulatory risk when deciding if they will move forward with preparations for the implementation of this new standard or wait for the legal process to conclude before taking any action.

Our Covid Response Team is monitoring the situation closely and will keep our clients updated as needed. Please visit our Covid Resource Center for additional information and updates.