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OSHA’s Pending Employee Vaccine ETS and the Supreme Court

On Monday, January 10, 2022, OSHA will begin enforcing the first phase of the Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to combat the spread of COVID-19 including that all employees either be vaccinated or submit to weekly testing. This Friday, January 7, 2022, the Supreme Court will be hearing arguments on lawsuits filed against this ETS.  On February 9th, OSHA will begin enforcing the vaccine and testing requirements of the ETS.

The provisions of the ETS that OSHA will start enforcing on January 10th include:

  • Covered (employers with 100 or more employees) must have identified, and keep record of, employee vaccinations statuses.
  • Covered employers must provide employees with up to 4 hours of paid leave to receive each dose of the COVID vaccine and reasonable paid time off to recover from any side effects that the employee may experience from each dose of the vaccine.
  • Covered employers must implement and communicate written COVID safety protocols that include provisions: (i) requiring employers to provide notice if they are diagnosed with or test positive for COVID-19, (ii) removing employees who are diagnosed with or test positive for COVID-19 from the workplace until certain criteria are met, and (iii) requiring unvaccinated employees to wear face coverings when they are indoors or sharing a vehicle for work (with certain exceptions permitted).
  • Covered employers must report work-related COVID fatalities or hospitalizations to OSHA.

Per the Small Business Legislative Council (SBLC) and I serve as the SBLC’s Treasurer, “there are three potential outcomes with the timing of the Supreme Court oral arguments and the OSHA enforcement date:

  1. The Supreme Court issues a decision on or before January 10 upholding the ETS and the OSHA proceeds with enforcement of the ETS.
  2. The Supreme Court issues a decision on or before January 10 striking down the ETS or staying the ETS pending a decision.
  3. The Supreme Court doesn’t decide the case or stay the ETS by January 10 and OSHA proceeds with enforcement of the ETS.”

While the vaccine and testing provisions have gotten the most attention, as outlined above, the ETS also has a wide range of other requirements that are set to go into effect on January 10th.  Items such as developing and issuing compliant policies and determining all employees’ vaccination statuses will take time and planning.  Per the SBLC, “covered businesses that elect to wait to see what happens with the Supreme Court before taking steps towards compliance may find themselves in a scramble or unable to get themselves into full compliance if enforcement begins on January 10 as OSHA has planned.  The legal issues that the Supreme Court will be considering in this case are nuanced and deal with questions of administrative law and rulemaking authority.  Businesses that are assuming that the ETS will be struck down, or that the Court will have ruled on the case by January 10th, are perhaps taking an unnecessary risk.  Rather than waiting for the Supreme Court’s decision, businesses may want to begin to take steps now to prepare so that they can be in full compliance by January 10 if the ETS goes forward on that date.”

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