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Reckoning with the OSHA “Vaccination or Test” Mandate


Reckoning with the OSHA “Vaccination or Test” Mandate

By William R. Thetford, Jr. Esq. and Jonathan E. Monroe, Esq.

November 16, 2021

The Occupational Safety and Health Administration (“OSHA”) has released the long-anticipated Emergency Temporary Standard (“ETS” or “Rule”). The Biden Administration directed OSHA to craft the ETS addressing COVID-19 vaccinations or alternatives for employers with 100 or more employees. As employers and employees have experienced numerous times since the onset of the COVID-19 pandemic, this Rule has again raised new questions and concerns. This Rule will reshape the employment landscape in the United States, even as litigation is challenging its broad scope. We answer some of the key questions employers and employees are asking at this point; however, the fate of this rule and its enforcement is currently subject to litigation and is temporarily stayed as the litigation progresses.

What is the Rule?

 At the federal level, most rules begin as proposed rules. They undergo a period of notice and comment for stakeholders to issue feedback. A proposed rule then becomes an interim final rule, meaning it is effective immediately. Comments can still be posted through the Federal Register here.[1]

Since the legislative branch is the only branch permitted under the Constitution to pass legislation, executive branch agencies may only promulgate federal rules to help enforce statutes already passed or achieve objectives already delegated by Congress.

In this case, the President directed the Occupational Safety and Health Administration (“OSHA”), a division of the Department of Labor, to issue a rule imposing mandatory vaccination or weekly testing on employers of 100 or more employees. OSHA relies upon the Occupational Safety and Health Act (OSH Act) to grant OSHA the authority to maintain certain workplace safety rules for employers. In certain cases, OSHA may issue an emergency temporary standard, which takes effect immediately upon publication in the Federal Register. However, to bypass the normal process and issue this type of standard, OSHA must make two determinations:

(A) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and

(B) “that such emergency standard is necessary to protect employees from such danger.”

Much of the litigation regarding this ETS will be concerning whether OSHA and the Biden Administration properly made those determinations.

Critical Information Regarding the Emergency Temporary Standard (ETS) 

A. How Long is the ETS in Effect?

As the name “emergency temporary standard” suggests, OHSA intends to replace the ETS with a finalized version of the rule within six months. Litigation is challenging the strictness of the Rule, but the Rule’s questions for commenters suggest OSHA is considering making the rule even stricter in the final version.

B. What Employers are Subject to the ETS?

 The ETS applies to all employers with 100 or more employees. It does not apply to federal agencies and federal contractors. Such agencies and contractors are subject to stricter executive orders, which do not allow employees the ability to opt-in to testing instead of mandatory vaccination (except for limited religious or medical exemptions).

Technically, some employers are subject to state plans approved by OSHA, not OSHA directly. Virginia is one of these states. The plans of these states, though, are required to be at least as protective as OSHA’s standards, if not more so.

C. Who Counts as an Employee?

 Every employee, full-time, part-time, seasonal, or otherwise, counts toward the 100-employee threshold. Independent contractors do not count towards the threshold. Separately owned franchises can be separate entities for coverage purposes.

D. How Do Employers Know if they Meet the 100-Employee Threshold for Coverage if they Have Fluctuating Employee Numbers?

 The Department of Labor and OSHA have answered this question directly on their FAQs page:

The determination of whether an employer falls within the scope of this ETS based on number of employees should initially be made as of the effective date of the standard (November 5, 2021). If the employer has 100 or more employees on the effective date, this ETS applies for the duration of the standard. If the employer has fewer than 100 employees on the effective date of the standard, the standard would not apply to that employer as of the effective date. However, if that same employer subsequently hires more workers and hits the 100-employee threshold for coverage, the employer would then be expected to come into compliance with the standard’s requirements. Once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce. For example, if an employer has 103 employees on the effective date of the standard, but then loses four within the next month, that employer would continue to be covered by the ETS.[2]

In short, assuming OSHA’s interpretation of the Rule carries the day in litigation, every employer who has 100 employees at any point during the existence of the standard remains subject to the ETS, as long as it is in effect. It is possible that the final rule may allow for employers who experience a reduction in their workforce below 100 to become exempted, but even the threshold of 100 employees is up for negotiation according to OSHA.

E. Can Employers Reorganize to Avoid Being Subject to the ETS?

Sometimes employers have found it better to spin off parts of their business or organization in order to avoid the higher costs, compliance, and regulations that come with size and certain employee thresholds. That strategy will not be effective under the current ETS. As noted above, if an employer has 100 or more employees at any point, the employer is subject to the ETS no matter how few employees it has and for whatever reason.

In other words, once an employer has 100 or more employees after November 5, 2021, it does not matter whether an employer has fluctuating employee counts, experiences seasonal swings in employment numbers, suffers the loss of a large number of employees, downsizes to only a fraction of its former size, spins off some of its business to another organization, or intentionally tries to reduce employment numbers; that employer will always be subject to this ETS.

New organizations and other employers that have never had 100 or more employees since November 5, 2021, may avoid being subject to the ETS by keeping their employment numbers at 99 or below. However, note also that two or more related entities may be regarded as single employer for OSHA purposes “[i]f they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.”[3]

Employers considering the structure of their organization based on these considerations should be aware that, should the ETS be upheld, the rules for the 100-employee threshold may be different in the final rule, expected six months from the date of the ETS.

F. Are There Church or Nonprofit Organization Exemptions?

 The ETS is broadly stated, so it appears to apply to every kind of employer, even churches, religious ministries, and other nonprofit organizations. There is no express exemption or provision for churches or nonprofits. This may be one of the items contested through litigation, however.

G. What Must Employers Require of Their Employees?

Generally, the ETS requires that all employers of 100 or more employees impose certain requirements on all their employees and bear costs associated with vaccination of their employees (paid time off to receive vaccination, etc.). Employers must develop a vaccination policy, determine employee vaccination status, and phase in vaccination cost-bearing support by December 6, 2021.

The ETS mandates that this policy must either (a) require all employees to be vaccinated (subject to religious and medical accommodations under federal and/or state law) or (b) require all employees to choose between: (i) providing proof of being fully vaccinated or (ii) undergoing COVID-19 testing every seven days and wear masks in the workplace. The employer must phase in the testing requirement for employees who are not vaccinated by January 4, 2022.

What Testing is Necessary to Satisfy the OSHA Testing Requirement?

OSHA requires that all unvaccinated employees in qualifying businesses get tested for COVID-19 every seven days. No specific test is required by OSHA; individuals are permitted to use Antigen Rapid Tests or the Nucleic Acid Amplification Test (NAAT). Employers are not required to accept any particular test; however, both tests have their pros and cons.

Antigen Tests are faster and are also relatively cheap. Unfortunately, self-tests can be difficult to find in stock and must be performed: (a) in front of an employer; (b) in front of an authorized telehealth proctor; (c) by an employer with a CLIA certificate waiver; or (d) with any test that is approved or cleared by the FDA. Over-the-counter and point-of-care tests are both permitted. On the other hand, NAATs are more accurate, but usually take one to two days and are more expensive than Antigen Tests.

A. Can I Use Self-Tests?

 Yes. OSHA’s regulation allows for the use of COVID-19 self-tests, with some limits. First, the test must be approved by the FDA. Tests may be approved under the Emergency Use Authorization to qualify for the approval. Second, the employee cannot simply administer the test himself without some form of verification of its proper administration. For instance, an employer or an authorized telehealth proctor may witness the performance of the test. An employer may perform the test if the employee has signed a CLIA certificate waiver.

B. Is the Employer Required to Pay for Testing?

No. OSHA has stated that vaccination is an individual choice and therefore, the employer is not required to pay for testing. Of course, employers may always choose to pay for or reimburse the cost of the tests. Nothing in the regulation prohibits the employer from doing so.

C. What Exemptions Exist?

 OSHA has listed three exemptions to the testing policy for employees who are not vaccinated: (a) if the employee does not work in the office; (b) if the employee works from home; or (c) if the employee works exclusively outdoors. “Exclusively outdoors” means an employee must primarily work outside with de minimis presence indoors. Employees may use an indoor, multi-stall restroom and enter administrative offices for short periods of time. OSHA has noted that it has final say on whether an employee’s time indoors is truly de minimis. No other exemptions are specified within the rule.

What to do When Vaccinated Employees Test Positive

 The Department of Labor and OSHA have answered this question directly on their FAQs page:

Regardless of COVID-19 vaccination status or any COVID-19 testing required under paragraph (g) of the ETS, the employer must immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a license healthcare provider and keep the employee removed until the employee:

1. receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for      confirmatory testing;

2. meets the return-to-work criteria in CDC’s “Isolation Guidance: (incorporated by reference, §1910.509); or

3. receives a recommendation to return to work from a licensed healthcare provider.[4]

Other Important Definitions

A. What Does “Fully Vaccinated” Mean?

 “Fully vaccinated” describes an individual’s status two weeks after receiving the final dose of the vaccine, with, if applicable, the minimum recommended interval between doses. Proper dosage may be determined by a listing that is: (a) approved or authorized for emergency use by the FDA; (b) listed for emergency use by the World Health Organization; or (c) is administered as part of a qualifying clinical trial. “Booster” shots are not required at this time to be considered “fully vaccinated.”

B. What is a Face Covering? 

Qualifying face coverings must: (1) completely cover the nose and mouth; (2) be made from two or more layers of tightly woven fabric; (3) be secured to the head with ties, ear loops, or elastic headbands; (4) fit snugly over the nose, mouth, and chin with no large gaps; and (5) be made of a solid piece of material without slits, exhalation valves, visible holes, punctures, or other openings. Gaiters may qualify if they have two layers or are folded to make two layers.

What is the Current Status of the Rule?

At this time, the 5th Circuit Court of Appeals has stopped enforcement of the OSHA Rule, pending a review. Several states and organizations have brought suits to challenge the new Rule. Although the Rule is temporarily stayed at this time,[5] nothing prevents employers from voluntarily implementing the standards articulated in the Rule. The Biden Administration has stated that businesses should continue to treat the Rule as enforceable and hope to be able to enforce it quickly if they prevail in court or the stay is lifted at some point in the litigation. It is possible that given the number of legal challenges to the mandate, the cases could be consolidated in another circuit where the stay is lifted. There is, however, no legal basis for enforcement of the rule at this time due to the stay.

Four other significant cases of note are: (1) The Daily Wire v. OSHA; (2) The Southern Baptist Theological Seminary v. OSHA; (3) State of Missouri v. Biden; and (4) State of Florida v. OSHA. More information can be found about these cases at this link.

Employers or employees with questions about the application of the ETS to their situation are more than welcome to contact us for a consultation and to evaluate the best options given the new Rule and employer obligations.


Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Robert Showers at hrs@simmsshowerslaw.com, Jonathan Monroe at jem@simmsshowerslaw.com, or William Thetford at wrt@simmsshowerslaw.com for legal advice that will meet your specific needs.

[1] COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified at 29 C.F.R. pt. 1910) (hereinafter “ETS”).
[2] Emergency Temporary Standard: Frequently Asked Questions, Occupational Safety and Health Admin., https://www.osha.gov/coronavirus/ets2/faqs (last visited Nov. 15, 2021).
[3] ETS, 86 Fed. Reg. at 61,513.
[4] Occupational Safety and Health Admin., supra note 2.
[5] BST Holdings v. OSHA, No. 21-60845 (5th Cir. 2021) (order granting stay pending review), https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf.
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