Labor & Employment Insights

No sooner did OSHA issue its Emergency Temporary Standard (ETS) on November 4, 2021, to implement mandatory vaccination or testing programs for large employers, it was challenged in 11 of the 12 United States Courts of Appeals as an unconstitutional overreach by the agency. Last Friday the 5th Circuit Court of Appeals (covering most of Louisiana, Mississippi and Texas) confirmed its November 6th temporary stay of the ETS, stating that the rule “grossly exceeds OSHA’s” statutory authority.” The Court also held that the COVID-19 virus was not a proper subject of emergency administrative action by OSHA. Under the court’s ruling, the stay will remain in place until a further order that will come from the appeals court assigned by the U S. Judicial Panel on Multidistrict Litigation to hear the consolidated Circuit Court petitions.

In the face of these legal challenges, OSHA suspended the implementation and enforcement of the ETS pending the ongoing litigation. However, OSHA stated that it remains confident that the ETS will ultimately be withheld.

What should large employers covered by the ETS do? In light of the 5th Circuit ruling, employers of 100 or more no longer need meet the looming December 6th and January 4th deadlines imposed by OSHA to implement vaccination verification, weekly testing, and other requirements of the ETS.

As part of President Biden’s plan for battling the COVID-19 pandemic, the Occupational Safety and Health Administration (OSHA) has issued the anxiously awaited emergency temporary standard (ETS) “to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.” Consistent with the President’s plan, the ETS requires large employers to adopt policies mandating COVID-19 vaccination or alternatively, policies requiring employees to choose between vaccination or undergoing regular COVID-19 testing.

The ETS is expected to apply to two-thirds of private sector workers. While the ETS does not apply to state and local governments in states without OSHA-approved occupational safety and health programs (“State Plans”), jurisdictions with State Plans (such as New Jersey) must comply with the ETS. Although the ETS does not currently apply to small employers, OSHA cautions that it needs time to assess the capacity of small employers to meet the administrative burdens of the ETS and is seeking comment to help the agency make that determination.

We have distilled the 490-page ETS to provide an overview of the requirements that will be imposed upon large employers under the ETS.

On September 9, 2021, President Biden announced that large employers of 100 or more must mandate that their employees show proof of being fully vaccinated for COVID-19 or wear a mask and undergo weekly COVID-19 testing. These mandates were not slated to go into effect until the Occupational Safety and Health Administration (OSHA) developed an Emergency Temporary Standard (ETS) addressing the requirements employers must follow when implementing the vaccination and testing mandate.

On November 4, 2021, OSHA issued the highly anticipated ETS. The Lindabury team is currently wading through the 490-page ETS and will provide a more detailed analysis of the requirements in the near future. In the interim, here are only some of the ETS details employers have been anxiously waiting for:

• The ETS is effective November 5, 2021, and will be in effect for 6 months

In June of 2021 the New York Legislature passed the HERO Act requiring employers to adopt an airborne infectious disease exposure presentation plan by no later than August 5, 2021.   Employers were free to use the State’s model plan entitled Airborne Infectious Disease Exposure Prevention Standards and Model Plans for Various Industries, found at https://dol.ny.gov/ny-hero-act, or develop their own plans that were compliant with HERO Act’s requirements. However, employers were not obligated to implement the infectious disease plan until such time that the Commissioner of Health officially designated an outbreak as a “highly contagious infectious disease.”

On September 6, 2021, the Commissioner of Health formally designated COVID-19 as a highly infectious disease, thus triggering the obligations of New York employers to implement the protocols of their respective infectious disease prevention plans, including:

• Review and update the plan to incorporate any updated requirements

The aim of President Biden’s “Path Out of the Pandemic,” announced on September 9, 2021, is to increase the number of vaccinated workers across the country.  To that end, the plan includes several requirements that will affect more than 80 million private sector workers and most workers in the public sector.

Mandatory Vaccination or Weekly Testing for Large Employers of 100 or More.  Under the President’s plan, large employers must ensure workers are fully vaccinated or provide a negative COVID-19 test at least once each week.  In addition, large employers must provide workers with paid time off to get vaccinated or to recover from the effects of the vaccine. Upcoming regulations will likely address how the 100-employee threshold will be met, whether it will include part-time, temporary or remote workers.

When Must Employer Comply?  It is unclear when these mandatory requirements will take effect. According to the White House, the Occupational Safety and Health Administration (OSHA) will develop an Emergency Temporary Standard (ETS) “in the upcoming weeks” implementing the vaccine mandate and ongoing testing requirements. While some suggest that this process will take 30 to 60 days, prior ETSs issued by OSHA earlier this year to combat the pandemic took five months. In addition, employers can expect legal challenges to the authority of the federal government to impose such mandates.

Employers are faced with a variety of legal questions when determining whether to mandate COVID-19 vaccinations and other safety protocols in the workplace. These questions are further complicated by varying opinions on the safety of vaccines and whether such mandates impose upon the privacy rights of employees.  This article outlines an employer’s legal rights in light of those concerns.

COVID-19 Vaccinations Mandates and Exceptions

The Equal Employment Opportunity Commission (“EEOC”) has stated that employers are free to mandate vaccinations in the workplace and to require proof of vaccination status. However, there are two exceptions to this mandate.  First, the Americans with Disabilities Act (“ADA”) requires employers to provide “reasonable accommodations” for those objecting to the vaccine based on one’s medical condition.  Accommodations may include, but are not limited to, continued mask wearing and social distancing, a private office or workplace, remote working, or even a leave of absence. Employees claiming they have a medical condition that prevents them from getting vaccinated should be required to submit documentation from a treating physician substantiating the need for an exemption.

As the Delta variant of COVID-19 continues to spread, many businesses have begun to mandate that their employees get vaccinated as a condition of employment. While there are innumerable benefits to having a fully vaccinated workforce, not every employer may want to pursue such a heavy-handed approach. Alternatively, employers may consider offering non-vaccinated employees incentives to get vaccinated. 

The Equal Employment Opportunity Commission (EEOC) has approved the use of incentives to encourage vaccinations in the workplace. However, it has noted that vaccination incentives cannot be so substantial as to be deemed coercive. Permissible incentives generally range from extra paid days off to free beer or lottery tickets. When determining what incentives to offer, it is critical that employers keep in mind that anything over a de minimus type of incentive may risk being deemed coercive. It is also important to note that employers cannot offer incentives to employees to have their family members vaccinated, as this would lead to the employer’s receipt of genetic information in the form of family history thereby running afoul of the Genetic Information Nondiscrimination Act (GINA Act). 

We recommend consulting with legal counsel to determine which approach is best for your business.

Since the onset of the pandemic in March 2020, employers have been grappling with an ever-changing landscape of federal and state mandates and recommendations. The situation is further complicated by varying opinions about how the pandemic should be handled as well as the efficacy or safety of the vaccines.  Employers are facing an unprecedented clash between ensuring their workplaces are as safe as reasonably possible while imposing mandates upon employees who feel that mandates have gone too far and infringe upon employee privacy rights and personal freedoms. This article seeks to dispel some of the confusion about the current state of employer efforts to combat the pandemic while balancing employee privacy concerns.

To Mask or Not to Mask, that is the Question.  With certain exception for high-risk areas such as healthcare settings and public transportation, all mandatory mask, social distancing and other safety measures imposed by Governor Murphy were lifted in early July 2021 for both vaccinated and unvaccinated individuals.  The CDC also lifted its mask recommendation for outdoor and indoor public spaces for all persons who were unvaccinated.

However, by mid-July the CDC and the Governor reversed course in response to the uptick in cases of the Delta variant. The CDC recommended that all individuals in counties with “substantial or high” transmission rate should mask up in indoor places, regardless of their vaccination status.  In late July Governor Murphy followed suit, “strongly recommending” that the CDC guidelines be followed in crowded indoor settings where the vaccination status of individuals is unknown or there is an immunocompromised person.