By Julie Pace, David Selden, & Heidi Nunn-Gilman
What are companies required to do regardless of the Fifth Circuit’s stay of the ETS?
Make sure COVID fatigue has not made your company lax regarding items that companies are supposed to have implemented and maintained, regardless of the newly proposed COVID‑19 vaccination standards. This legal alert outlines the federal contractor vaccination requirements, the new ETS standards for private employers that are currently on hold, how to prepare if it is implemented, and outlines what companies should be doing regardless of the OSHA Emergency Temporary Standards (“ETS”). Cases of COVID‑19 are increasing, especially in areas with high community transmission. The number of COVID-related deaths in 2021 has surpassed the number of COVID-related deaths in 2020.
I. Mandatory Vaccination Standard In Effect With New Federal Contracts.
Federal contractors who are subject to Executive Order 14042 (“EO 14042”) must comply with vaccination and other safety requirements when accepting a federal contract that contains the COVID‑19 vaccination clause or requirements. Requirements are generally applicable only to future covered federal contracts or extensions or exercise of options on existing federal contracts.
The mandates of EO 14042 are not affected by the Fifth Circuit Court of Appeals’ stay of the ETS for private employers with 100 or more employees.
Under EO 14042, covered contractors must ensure that employees working on a covered contract and those working in the same facility are fully vaccinated unless they are legally entitled to an accommodation.
Additionally, covered contractors must ensure that all individuals in the workplace including employees, visitors, vendors, etc., comply with CDC guidance for face coverings and physical distancing.
Finally, contractors must designate an individual at each worksite to coordinate COVID‑19 workplace safety protocols.
Companies should have a written policy, updated OSHA pandemic plan, signage about face coverings and other safety procedures, a policy to process accommodation requests, and more. Companies are required to follow the Safer Federal Workforce Task Force guidance, whose guidance may change.
Current examples of guidance include, but are not limited to: exemptions can be made to the face covering requirements consistent with CDC guidelines, including no mask required when an employee is alone in an office with floor to ceiling walls/windows and a closed door or brief periods while eating. Also, CDC requires face coverings in public indoor spaces in areas of high or substantial community transmission. This is a summary of federal contractor rules. Please seek legal counsel for further guidance.
II. Legal Challenges To The ETS; ETS Is Currently On Hold.
On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) published Emergency Temporary Standards (“ETS”) implementing the requirements of President Biden’s Path Out of the Pandemic. It has been subject to multiple legal challenges.
A group of states, business associations, and businesses filed an emergency motion to stay the enforcement of the ETS in the Fifth Circuit. On Saturday, November 6, 2021, the Fifth Circuit Court of Appeals issued a temporary stay of the Emergency Temporary Standards, finding that the ETS poses grave statutory and constitutional issues. On November 12, 2021, the Fifth Circuit Court of Appeals issued an opinion granting the continued stay until there is “adequate judicial review” of the motion for a permanent injunction. The Fifth Circuit further ordered that “OSHA take no steps to implement or enforce [the ETS] until further court order.” OSHA has announced it is suspending enforcement of the ETS pending the legal challenge.
A total of 27 states and several businesses, organizations, and individuals have filed federal lawsuits to block the ETS. The state cases have been filed in five different circuits:
- Fifth Circuit (TX, LA, SC, UT, MS);
- Sixth Circuit (KS, KY, ID, OH, OK, TN, WV);
- Seventh Circuit (IN, Wisconsin Manufacturers);
- Eighth Circuit (MO, AZ, NE, MT, AR, IA, ND, SD, AK, NH, WY);
- Eleventh Circuit (FL, AL, GA).
There is also a petition filed in the D.C. Circuit. Note that Arizona filed as part of the Eighth Circuit Court of Appeals case, even though Arizona is within the jurisdiction of the Ninth Circuit Court of Appeals.
When lawsuits are filed in multiple circuits challenging the same agency order, the Judicial Panel on Multidistrict Litigation will randomly select one court to hear all of the combined challenges. The challenge to the ETS will be heard by the Sixth Circuit Court of Appeals. The Sixth Circuit may affirm the Fifth Circuit stay, reverse the stay and let OSHA proceed, or issue its own stay pending further review.
In the past 55 years, OSHA has issued only 10 emergency temporary standards. Six were challenged in court and only one survived a legal challenge.
Even though the ETS is currently stayed, companies should make decisions about what policies they will implement if the ETS goes into effect.
III. Mandatory Requirements Of The Emergency Temporary Standard.
Employers with 100 or more employees or who reach the 100 employee total during the 6 months that the ETS is in effect, must comply with the ETS requirements, primarily:
- Establish a written policy requiring all employees to be fully vaccinated, unless legally entitled to an exemption due to a disability or religious belief or are unable to receive the vaccine for a medical reason or, alternatively, establish a written policy that requires employees to either be fully vaccinated or submit negative COVID‑19 tests at least once every 7 days. A self-administered and self-read test is not acceptable. Self-administered tests must be observed by the employer (check with legal counsel for privacy protocols) or a health care proctor (health care could be via video). The regulations list a variety of tests that will satisfy the requirement.
- The deadline to be vaccinated or provide negative COVID‑19 tests is 60 days after the effective date of the ETS, which was January 4, 2022, but now is subject to the stay. If the stay is lifted, employers in federal OSHA jurisdictions (states that do not have a state plan), may be required to comply by this deadline or a different deadline may be set. State OSHA plans generally have 30 days to implement their state equivalent.
- The ETS does not require an employer to pay the cost of testing, but other state or federal laws may require the employer to pay the cost of testing and/or the time spent testing. The ETS allows the employee to cover the cost of testing to encourage more employees to be vaccinated. Employees may want to avoid the cost of testing and, therefore, may obtain the vaccination.
- If employees come to the work site only intermittently and do not regularly come at least one day in every seven, then they are permitted to provide a negative test only before coming to the office or job site, rather than every single week.
- Require employees who are not fully vaccinated to wear appropriate face coverings. Face coverings must meet certain minimum standards, such as being two layers of material that fully cover the mouth and nose and made from a material that does not allow light through (single layer gaiters do not qualify).
- Pay employees for the time it takes to get vaccinated, including travel, waiting time, etc., and reasonable time spent recovering from vaccine side effects. Paid time for receiving the vaccine can be limited to 4 hours. Paid time for side effects must be “reasonable,” which is presumptively 2 days.
- Maintain records to prove compliance, including records proving an employee’s vaccination status (for vaccinated employees) or negative COVID‑19 tests (for employees who are not fully vaccinated). These records are considered confidential medical records and must be maintained in a confidential and restricted manner and not shared with third parties without the employee’s written consent. Companies should not be disclosing or sending COVID-19 test results or vaccination cards to general contractors, owners, customers, third parties, etc.
- Establish written policies containing certain elements and provide certain information to employees through training, emails, memos, or other communications appropriate to the workplace.
- Exclude employees who test positive for COVID‑19 from the workplace until they either receive a negative COVID‑19 test, satisfy the CDC guidance on isolation, or receive a release from a health care provider.
Other than the vaccination or testing mandate, all other elements of the ETS, such as the requirement to record employees’ vaccination status, implement policies regarding face coverings and other protective measures, etc. were set to become effective 30 days after the effective date of the ETS, which would have been on December 6, 2021, but such date is delayed due to the stay issued by the Fifth Circuit Court of Appeals.
Multiple entities with common ownership or operation may be viewed as a single entity for determining whether they meet the 100 employee threshold, depending on how the companies are operated and if the safety matters are handled as a single company, such as having the same person operating as the safety officer.
The vaccination and/or weekly testing requirements do not apply to employees who:
- Do not report to a workplace where other individuals (coworkers, customers, vendors, etc.) are present;
- Workers who telework; or
- Workers who perform their work exclusively outdoors. This requires that they not travel with other employees in a work vehicle and any time indoors be de minimis, such as using the restroom on occasion or delivering paperwork to an administrative office. If the only restroom available to the employee is indoors, OSHA has stated that the employee will not be considered working exclusively outdoors. If employees attend toolbox talks or training or meetings indoors, then they are not considered to be performing their work exclusively indoors. Additionally, work performed at buildings that are under construction is not considered performed outdoors if a substantial part of the structure, such as walls or ceilings, is in place and would impede the natural flow of fresh air.
Employers can voluntarily apply their policies to the above groups of people, but it is not required by the ETS.
Employers can implement higher standards than required by the ETS. The ETS sets the minimum standards. The ETS also specifically preempts any state laws that would prohibit employers from requiring vaccination, testing, or the use of face coverings.
OSHA’s ETS also noted that it acts as a notice of intent to publish final regulations. Therefore, it has requested comments on the rules, which are due on January 4, 2022.
OSHA is in charge of enforcing the new Federal Government mandate and can issue fines of up to $14,000 per violation.
IV. State OSHA Plans.
States that have their own OSHA plans are not technically covered by the ETS. Instead, the state plan is required to adopt procedures that are “at least as effective” as the Federal standards. Twenty-two states have approved state plans covering private sector workers.
Arizona has a state OSHA plan enforced by the Arizona Division of Occupational Safety and Health (ADOSH). Generally, a state plan, such as Arizona, has 15 days after an ETS is issued to notify Federal OSHA of its plans and 30 days to implement its own standards. According to ADOSH, these time frames do not begin to run until after any stays against the ETS are lifted.
V. COVID‑19 Policies, Options, And Tips.
Companies should have implemented protective measures, but OSHA has expressed concern that due to “COVID-fatigue” companies are lax about enforcing policies and precautionary measures.
Companies should review and update, as appropriate, several items regardless of ETS effective date include but are not limited to:
- An updated Pandemic Preparedness and Response Plan, which addresses the ETS and also addresses different requirements for fully vaccinated employees versus nonvaccinated employees;
- Information regarding Reasonable Accommodations under the ADA and Title VII (religious and medical requests for exemptions);
- Reasonable Accommodation Request Form for Religious Exemption;
- Reasonable Accommodation Request Form for Medical Exemption;
- Information on recording COVID‑19 and related conditions on the OSHA 300 log and reporting fatality or hospitalization;
- A policy or procedure to protect the confidentiality of vaccination status and records or COVID‑19 testing records;
- A response to clients, owners, general contractors who request vaccination records;
- COVID‑19 Toolbox Talks.
Additional items that may apply to Federal Contractors include but are not limited to:
- Memo on Federal Contractor vaccination requirements under EO 14042, if applicable;
- Policy to implement the requirements of EO 14042;
- Notifications to an employee for requirements and exceptions;
- Notifications to persons at work sites regarding face coverings, physical distancing, etc.
Items to implement after ETS is in effect include but are not limited to:
- FAQ on Vaccinations;
- Information regarding the OSHA Emergency Temporary Standard, including recommendations for compliance;
- Mandatory Vaccination Policy or a policy giving the employees a choice of Vaccination or Weekly Testing – employers generally can elect the policy to implement; and
- Other policies and documents.
Gammage & Burnham employment lawyers have experience in counseling employers and providing COVID policies, updated OSHA-compliant pandemic plans, safety toolbox talks to use with employees, and working with companies to document and engage in interactive dialogues required by the ADA and for religious considerations.
It is generally more effective for the policy to be explained by a supervisor who is closer and more likely to be trusted by the employees than for the policy to be rolled out in a large group setting, on paper, or email, which makes it less likely that employees will be comfortable to ask questions or express themselves.
Also, consider having a counselor’s contact information available to employees to speak within a private setting about their anxieties and stress related to the vaccine.
Do not forget to translate educational materials into Spanish, or other languages, to enhance education and awareness about the safety of the vaccine and the benefits of the vaccine against COVID. If a workforce is afraid of the government or concerned about providing information to get a vaccine, consider bringing a nurse to the workers. The ETS requires that information be provided in the language that employees understand.
Depending on the number of unvaccinated employees, businesses may want to consider engaging a mobile vaccination or testing service to come to the workplace, as that would facilitate compliance and minimize the paid time off for vaccinations.
Employers should also preserve documentation that they have reviewed including vaccination cards, negative COVID test results for employees, etc. to demonstrate compliance with the new standard in the event there is an OSHA inspection, which can be triggered by an employee complaint or by a random process. Records to verify vaccinations or negative COVID tests should be preserved, either in paper or electronic form, confidentially and securely and may not be maintained with regular personnel files. Counterfeit vaccination cards are already appearing so companies may need to address fraudulent documents.
Employee resistance to vaccinations may be deep-seated and based on a variety of factors. Employers should also consider engaging the services of counselors or medical providers to speak with hesitant employees to answer questions and provide information. Such approaches will likely be more persuasive and effective with some vaccine resistant employees who may react negatively to perceived authoritarian edicts from employers just as they do to mandates from the government.
Caring and trusted individuals in an organization will have more success in talking to employees and accomplishing the goal of increasing vaccinations at a worksite, as opposed to threats and bullying employees to obtain a vaccine. Plan your process to increase vaccinations and ensure compliance while avoiding unnecessary distractions and disruptions at work and avoiding claims and charges. Safety, education, understanding, and mental health support should be primary elements of a company’s plan to implement the new policy.
Employees who request an exemption from the vaccination requirements for medical or religious reasons should be treated with respect. Employers should consult with legal counsel to make sure that they comply with the requirements of Title VII of the Civil Rights Act (religious accommodations) and the Americans with Disabilities Act.
VI. Avoid Retaliation Claims Based On COVID And New EEOC And NLRB Guidance.
Employees can bring retaliation OSHA complaints against companies. For example, if employees raise a safety issue that is ignored or the company fails to comply or expresses disdain for the employees raising the safety issue, that can be retaliation and employees can file a charge with OSHA.
Title VII, the ADA, and other anti-discrimination laws prohibit employers from retaliating against employees who engage in protected activity. On November 17, 2021, the EEOC issued guidance on pandemic-related retaliation claims. The guidance reminds companies that speaking out or exercising rights relating to workplace discrimination is “protected activity.” One example provided by the EEOC is that a company cannot take adverse action against an employee who files charges with the EEOC alleging that the supervisor unlawfully disclosed confidential information, even if there is no merit to the allegations. Reporting alleged EEOC violations to a supervisor or participating in an employer’s investigation of harassment or discrimination are also protected activities.
Importantly, employers should note that requesting an accommodation due to a disability or religious belief, practice, or observance is a protected activity, even if the accommodation is eventually properly denied.
Adverse action that can be retaliation includes, but is not limited to, actions such as denial of promotion or job benefits, non-hire, suspension, discharge, work-related threats, warnings, negative or lowered evaluations, or transfers to less desirable work or work locations. Retaliation could also include an action that has no tangible effect on employment, or even an action that takes place only outside of work if it might deter a reasonable person from exercising EEOC rights. Employers can take action against an individual who has engaged in protected activity only if the company can show a non-retaliatory and non-discriminatory reason for the adverse action.
The NLRB General Counsel issued a memo on bargaining obligations regarding OSHA’s new ETS vaccination requirements. The memo states that for large employers even where an employer can unilaterally change policies under federal law, failure to bargain over the effects of the ETS policies or the company’s decision as to how to comply with the ETS where the company has discretion can constitute an unfair labor practice violation under Section 8(a)(5) of the National Labor Relations Act.
The Employment Practice Group at Gammage & Burnham is available to help companies address employment policies such as OSHA, Pandemic Compliance Plans, COVID compliance, interactive dialogue process, as well as to counsel employers in individual compliance or employee discipline issues. Gammage & Burnham lawyers have particularly extensive experience in OSHA compliance issues, and OSHA procedures are the centerpiece for the new COVID requirements for employers. For additional guidance, please contact Julie Pace, David Selden, or Heidi Nunn-Gilman.