OSHA halts implementation of Biden vaccine policy

The update, announced Wednesday, follows a Nov. 12 ruling by a three-member panel of the 5th U.S. Circuit Court of Appeals in New Orleans that placed a hold on OSHA’s emergency temporary standard (ETS), calling it “staggeringly overbroad” and “a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers),” according to Reuters.

The case was decided to next head to the conservative-leaning Sixth Circuit before OSHA’s update Wednesday.

“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,” the agency said.

ETS explained

OSHA announced Nov. 4 the ETS is meant to “protect more than 84 million workers from the spread of the coronavirus on the job.”

“Under this standard, covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work,” OSHA said.

The 400-plus-page ETS document is the federal government’s attempt to preempt local and state laws that have banned vaccine mandates, most notably in Texas and Florida, said Mark Blondman, partner with Blank Rome.

“The ETS is meant to establish minimum requirements and intended to preempt inconsistent state and local requirements, including requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing, regardless of the number of employees,” Blondman said.

The ETS attempts to answer a number of sticky questions for companies seeking to implement a vaccine mandate, like how to verify an employee is vaccinated; how to handle unvaccinated employees; and whether companies are expected to pay for testing and masks. Responsibility for administering these new requirements would likely fall, in some shape or form, onto the compliance function of many companies, as well as legal, operations, human resources, and others.

Let’s start with how the ETS says a company would have to verify whether an employee is vaccinated. An employee could provide written proof, like a COVID-19 vaccination record card; written record of a vaccination from a healthcare provider or pharmacy; medical record indicating a vaccine was administered; or any other type of official documentation. In the event a worker could not provide such documentation, he or she could sign and date an attestation, under the penalty of perjury, that they have been vaccinated against COVID-19.

Companies could grant exemptions to the vaccine mandate for medical reasons or for religious or deeply held personal beliefs, but those employees must be treated as unvaccinated.

What if an employee refused to answer about their vaccine status or claimed their medical status is private? Requesting an employee’s vaccine status does not fall under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), meaning employers have the right to ask for an employee’s status, said Devjani Mishra, shareholder at law firm Littler Mendelson and a leader of its COVID-19 Task Force and Vaccination Working Group.

Employers would be required to maintain a record of each employee’s vaccination status and preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, Blondman said.

Unvaccinated employees would take weekly COVID-19 tests and provide the results to their employer. According to the ETS, employers would not be required to pay for testing, except “to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements.”

Face masks would be required for unvaccinated employees in all workplace settings except when they are in a closed office by themselves; when they are eating or drinking; or when they need to remove their face covering for identification purposes. Employers would also not be required to pay for face coverings.

Mishra said many employers are already handling a significant number of accommodation requests from employees who refuse to be vaccinated. Those requests include allowing for fully remote work; adjusted hours; and limited contact between the unvaccinated individual and other employees, vendors, and the public.

Editor’s note: This story is an update to an original post Nov. 4 when the ETS was announced.