As employers around the country await word from the United States Supreme Court ("SCOTUS"), and as SCOTUS does not seem to be in any rush to end the suspense, we thought it would be helpful to provide a current status report on the situation, as well as a refresher on how we got to this point. This article focuses on the OSHA ETS as generally applicable to large employers in all industries. We are publishing a separate alert including information and guidance specific to health care employers, including the also-pending fate of the CMS-issued vaccine mandate for certain Medicare and Medicaid providers.
The OSHA ETS, which requires employers with 100 or more employees to enact COVID-19 vaccination or weekly testing requirements for employees, was issued by the U.S. Department of Labor on November 4, 2021 (as previously directed by President Biden in September). The OSHA ETS was almost immediately challenged and was stayed nationwide by the U.S. Court of Appeals for the Fifth Circuit. The stay was lifted by the U.S. Court of Appeals for the Sixth Circuit on December 17, 2021. This "Friday night surprise" from the Sixth Circuit put the OSHA ETS back in play, although OSHA stated that it would delay enforcement until January 10, 2022, with enforcement on the weekly testing part of the rule delayed until February 9, 2022.
The matter was appealed to SCOTUS, and oral arguments on both the OSHA ETS and the CMS rule were presented to the Court on January 7, 2022. Based on some of the SCOTUS justices' questions during the hearings, there has been much speculation that SCOTUS would rule against the OSHA ETS, but in favor of the CMS rule. There was also some expectation—and hope—that SCOTUS would rule quickly, in time to provide clarity to employers in advance of the January 10 OSHA ETS compliance deadline. However, as of the time of sending this alert, we have heard nothing from SCOTUS. So, the OSHA ETS remains in effect, and we continue to wait for SCOTUS to rule.
WHAT SHOULD EMPLOYERS DO NOW?
The OSHA ETS remains in effect and the initial compliance deadline (January 10) has passed. For employers covered by the federal OSHA ETS—the "federal" part is important, as discussed further below—OSHA could come knocking at any time, and penalties for noncompliance are steep. Employers who have been waiting to see what SCOTUS will do before rolling out compliant policies need to move forward with good-faith compliance steps at this time. If they have not done so already, covered employers should prepare and implement an OSHA vaccination-or-testing policy, determine the vaccination status of all employees by obtaining acceptable proof of vaccination, and maintain a roster of each employee's vaccination status. The OSHA ETS also requires employers to ensure that unvaccinated employees wear face coverings, provide paid time off for vaccination and for vaccination side effects, require employees to provide prompt notice of a positive COVID-19 test or COVID-19 diagnosis, and remove these employees from the workplace until they can return to work. Employers who intend to provide a testing alternative for unvaccinated employees have a bit of breathing room to sort out the details of a testing program, as the enforcement deadline to begin testing is not until February 9, 2022.
In the months since the Biden administration announced its "Path out of the Pandemic" initiative, some "red"- leaning federal OSHA states, such as Texas, Alabama, and Florida, have enacted state laws designed to ban, resist, or limit vaccine mandates. While the OSHA ETS was stayed, and if it ultimately is struck down, employers in those states will need to be mindful of those state laws. But, so long as the OSHA ETS is in effect, the consensus view is that federal law preempts any contradictory state law in federal OSHA states. So, while we encourage all employers to seek state-specific advice for all states in which they have employees, generally, it is likely that the safer approach at the moment for employers in federal OSHA states with contradictory "anti-mandate" or "anti-vax"-type state laws, is to comply with the OSHA ETS rather than contradictory state law.
Here we need to make an important distinction. The OSHA ETS is currently in effect for states directly under federal OSHA. This includes Mississippi, Alabama, Louisiana, and Texas, among others. But many states have state workplace safety laws and plans which are not directly under federal OSHA. This includes North Carolina, South Carolina, Kentucky, and Tennessee, among others. Click here for the current OSHA chart showing which states have state plans. Employers should make sure they know whether they are in a federal OSHA state or a state plan state.
Generally, employers in state plan states are not under the federal OSHA ETS and are not under the January 10 compliance deadline. However, state plans exist by permission of the federal government. As a condition for their existence, state plans should have safety standards "at least as effective" as what OSHA enacts at the federal level. State plan states that ignore this requirement risk having their approved state plan status revoked, meaning the state may revert to being directly under federal OSHA.
What should you do if you are in a state plan state? We understand that OSHA has directed the state plan enforcement agencies to adopt their own ETS by January 24, 2022; however, this information was not officially published by OSHA and we have learned about this date through reports from various sources in different states. It is rumored that some state agencies in "red"-leaning states may refuse to enact a state vaccination-or-testing ETS, setting the stage for some federal/state showdowns. But so far, the state agencies have, by and large, remained silent, and probably, like the rest of us, are waiting to see what SCOTUS will do. If SCOTUS strikes down the federal OSHA ETS, then state agencies will be off the hook and will not be obligated to enact a vaccination or testing requirement for large employers.
Based on the current state of affairs, it appears employers in state plan states (with the notable exception of Tennessee, as explained below) may choose to go ahead and roll out their OSHA ETS compliance this week, but do not have to do so. However, as we wait to hear from SCOTUS, it would be prudent for employers in state plan states to be ready to comply with a January 24, 2022 deadline, while monitoring the situation closely.
Employers should also keep in mind that, whatever happens with the federal OSHA ETS, state and local laws, particularly in "blue"-leaning jurisdictions, may already, or in the future, provide for mask and vaccine mandates, quarantine and isolation periods after testing positive for COVID-19, and paid leave for vaccination and vaccination side effects. Some of these laws may have different and stricter requirements than the OSHA ETS. Even if the OSHA ETS remains in effect, it will not preempt state laws that impose greater safety obligations on employers. Employers must ensure that they are in compliance with these state and local laws, as applicable, in addition to the OSHA ETS. Again, it is best to get current, state-specific advice for all states where you have employees.
Tennessee is in a unique situation at the moment. Tennessee is a state plan state, and therefore not under the OSHA ETS or the January 10 deadline. TOSHA (the Tennessee state plan agency) would appear to be under the reported OSHA-dictated January 24 deadline to enact its own ETS, but has recently announced that it "will wait for the United States Supreme Court ruling on the legality of the ETS before taking any further action." Meanwhile, unlike in some other state plan states, employers in Tennessee may run afoul of state law if they voluntarily roll out OSHA ETS compliance in Tennessee before they are legally required. This is because, in November 2021, Tennessee enacted a state law prohibiting employers from requiring employees to provide proof of vaccination if they object to receiving the vaccine for any reason. Therefore, employers in Tennessee should proceed with caution and get legal advice prior to enacting any policies that call for compelled vaccination status disclosure from employees.
If SCOTUS issues a ruling invalidating the OSHA ETS, this would change the game and render much of the information in this article moot. But, for now, employers should make sure they understand their obligations based on their workforce locations and proceed accordingly while continuing to monitor developments on a daily basis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.