On Nov. 6, the U.S. Court of Appeals for Fifth Circuit issued an order staying implementation of the OSHA Emergency Temporary Standard (ETS) requiring mandatory vaccination or weekly testing requirements for employers with 100 or more workers. While the decision is stayed, employers do not have to comply with its terms. However, that stay could be lifted by the Fifth Circuit or the Circuit that gets the consolidated cases for review on the merits. Once the stay is lifted, employers will have to comply with the terms of the ETS, but compliance deadlines should be tolled during the stay. As a best practice, if an employer can do so without suffering significant economic harm, they should start creating policies an procedures for compliance with the ETS to be prepared should the stay be lifted or the court decides to uphold the ETS on its merits.
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued the COVID-19 Emergency Temporary Standard (ETS) to implement President Biden’s mandate that employers with 100 or more workers require employees (full-time and part-time, but not contractors) to be vaccinated against COVID-19 or undergo weekly testing.
The order is now official with its publication in the Federal Register today. It is effective immediately and employers must comply with the requirements within 30 days of publication and with testing requirements within 60 days of publication.
The implementation of the vaccine and testing mandate will impact more than 84 million workers in private sector businesses nationally according to the DOL’s press release.
MichBio is providing this notice to inform you as to the contents of the rule. Here are our takeaways from the OSHA ETS:
- Employees must be fully vaccinated by January 4, 2022, and employers must require unvaccinated employees to mask and produce a negative test on at least a weekly basis.
- Employers are required to have a written vaccination policy.
- The OSHA ETS does not apply to employees who do not report to a workplace where there are other individuals such as coworkers or customers are present; employees working from home; or employees who work exclusively outdoors.
- The OSHA ETS does not require employers to provide or pay for tests.
- Employers must pay employees for the time it takes to get vaccinated.
- Employers must ensure all unvaccinated employees are masked.
- Employers must report COVID-19 fatalities and hospitalizations to OSHA.
- The OSHA ETS reaffirms that employers must provide reasonable accommodations.
- Vaccine, testing and face-covering requirements preempt inconsistent state and local requirements according to the Department of Labor
The last point tries to assert that it supersedes state and local laws. That assertion and most other aspects of this rule will very likely be vigorously challenged in court based on what we’re hearing anecdotally from other industry groups.
Additional FAQs regarding the order can be found here.
Finally, just know that MichBio strongly supports vaccination as a way to address the Covid pandemic, as well as other viral diseases. And we’re proud to represent an industry, and especially Michigan bioscience companies, that have provided solutions in the form of vaccines, anti-viral drugs, antibody treatments and other therapeutics to treat the devastating effects of the Covid disease.
ADDENDUM For Employers With Federal Contracts
There are separate rules for federal contractors and healthcare entities who receive payments from Medicare or Medicaid. Those rules supersede the above OSHA rules. In other words, most healthcare and federal contractors are technically exempt from today’s issued ETS order, because there are separate vaccination mandates for them as noted below.
Employers who are federal contractors or subcontractors (irrespective of employee count) are required to have all employees vaccinated without a weekly testing option in accordance with the “Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contracts and Subcontractors.” This guidance follows on Executive Order 14042 issued by President Biden on September 9, 2021 as outlined here.
Federal contractors or subcontractors are being asked to alter their contracts and agree to have their employees vaccinated, ensure workplace compliance with masking and safety protocols, tracking and record-keeping. The Guidance provides details on the requirements and includes FAQs to many employer questions.
Each contractor or subcontractor will have to determine their position on mandated vaccines against that of continuing with their federal contract. It is our understanding from other industry groups and legal advisors that there appears to be slim legal grounds to challenge this guidance. Nevertheless, there are two lawsuits that have been filed against Executive Order 14042 which may impact the requirements for federal contractors and subcontractors.
THE AFOREMENTIONED INFORMATION IS NOT LEGAL ADVICE – PLEASE CONSULT WITH LEGAL COUNSEL TO GUIDE YOUR FIRM’S PATH IN RESPONDING TO THE U.S. GOVERNMENT’S ORDER.