OSHA’s COVID-19 Vaccine or Test Emergency Temporary Standard

In arguably the most far-reaching move of the COVID-19 pandemic, on September 9, the Biden administration announced the “Path Out of the Pandemic”. The cornerstone of the plan involves the Occupational Safety and Health Act (OSHA) issuing a vaccine/testing rule that will apply to all private employers with more than 100 employees – which is estimated to impact 80 million workers, or two-thirds of the country’s workforce. This rule will take the form of an Emergency Temporary Standard (ETS), which allows the agency to enact regulations it can enforce immediately if a “grave danger” to worker safety is present. Covered employers who ignore the standard could face OSHA citations and penalties of up to $14,000 per violation. Although it is currently unclear, this likely means a fine of up to $14,000 for each facility inspected by OSHA where a covered employer has not implemented a mandatory vaccine policy or otherwise complied with the ETS.

More Questions than Answers
Since the announcement lacked specifics, it left many questions unanswered. Why target organizations with 100 employees? When will the ETS be issued? What are the compliance dates? Who pays for testing? The many questions would go unanswered until OSHA released the draft of the ETS.

The OSH Act permits the agency to issue an Emergency Temporary Standard (ETS) it can enforce immediately if it arrives at the conclusion that a “grave danger” to worker safety exists. On November 5th, 2021 OSHA released the ETS. With a compliance date of January 4, 2022, employers must:
establish, implement, and enforce a written policy on vaccines, testing, and face coverings; provide certain information to employees on vaccines and the requirements of the ETS provide paid time off to employees to obtain the vaccine and reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination series dose to each employee for each dose; obtain and maintain records and roster of employee vaccination status; and comply with certain notice requirements when there is a positive COVID-19 case and reporting to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.

The ETS preempts states from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a federally approved State Plan. OSHA states that the ETS invalidates any state or local requirements that bans or limits an employer’s authority to require vaccination, face coverings, or testing.

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Another Twist
While most marinas and boatyards may not meet the 100-employee headcount required under OSHA’s ETS, there is another twist to the plot. Another phase of Biden’s “Path Out of the Pandemic” included the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. The new rules will apply to any new contract or new contract-like instrument, including a new solicitation, extension, or renewal or exercise of an option, provided it is: a procurement contract for services, construction or a leasehold in real property; a contract covered by the Service Contract Act (SCA); a contract for concessions, including concessions excluded generally under the SCA; or
a contract in connection with federal property or lands offering services for federal employees, dependents, or the general public.

Under the ‘Safer Federal Workforce’ plan, marinas with an Army Corps of Engineer lease, operating in National Forest, or within another federal jurisdiction may be required to implement a program similar to OSHA’s ETS. The requirement may extend beyond operating agreements. Marinas that have a slip occupied by a federally owned vessel, provide fuel, or repair services may also be forced to implement new standards. The initial compliance date for the ‘Safer Federal Workforce’ of December 8, 2021 was pushed back to January 4, 2022 to align with the ETS.

An Immediate Response
Immediately after the release of the ETS, several organizations, private businesses, and states announced legal challenges with suits filed in the Court of Appeals for the Fifth Circuit challenging OSHA’s ETS the day it came into effect. A quirk in the way OSHA’s emergency standards can be challenged allows opponents to bypass the lower courts and go directly to a federal Court of Appeals. The Fifth Circuit challenge is not alone; similar cases have also been filed in the Sixth, Seventh, Eighth, and Eleventh Circuits. The Fifth Circuit petition asked the Court to find the ETS either exceeded the scope of OSHA’s authority or that it was unconstitutional. The challengers also pleaded with the Fifth Circuit to “stay” – or temporarily stop – enforcement of the ETS until it could be reviewed by the courts. Within 24 hours, the Fifth Circuit issued a brief order staying the ETS until it could be fully reviewed by the Court.

The order was extremely terse, stating that “the petitions give cause to believe there are grave statutory and constitutional issues” with the ETS (perhaps purposefully mimicking the claim by OSHA that “grave” danger exists such to justify the emergency rule). We will probably see further rulings in the coming days and weeks from other federal appeals courts as well, some following in the Fifth Circuit’s footsteps and blocking the ETS, others ruling that the ETS stands on solid legal footing. With a patchwork of various legal rulings expected, there will ultimately be a unifying judicial order having the final say on this matter. Whether that ruling comes from the multidistrict litigation panel (an assembly of federal judges that manages certain kinds of national litigation spanning several jurisdictions) or the U.S. Supreme Court remains to be seen.

The Bottom Line
At the moment, the outcome of the OSHA ETS is uncertain. While OSHA must refrain from enforcing the ETS until the Fifth Circuit says otherwise, this could change in the blink of an eye if a full panel of appeals court judges removes the stay. And again, with several separate lawsuits filed in different courts challenging the ETS, it is likely that a final binding and unifying determination will not be made for weeks or even months. As of right now, an employer’s best course of action is to familiarize yourself with the requirements of the OSHA ETS and prepare to implement those requirements if the stay is lifted and the emergency rule is revived. You will be hard pressed to develop these materials overnight, so spend this interim limbo time efficiently and be prepared to comply should the ETS ultimately be upheld.