The ETS Today And What’s Next

Employers need to now turn their attention to state and local laws

Just a week after SCOTUS issued its stay, on January 25, 2022, Occupational Safety and Health Administration (OSHA) withdrew the Private Employer Emergency Temporary Standard (the ETS). 

Similarly, on January 21, 2022, a Texas Federal Judge issued a “stay” for the federal contractor and employer vaccine mandates. While the private employer ETS may be over and the federal executive orders are on hold, employers still face a variety of other state and federal obligations. 

OSHA put to rest all concerns about the Private Employer ETS as we knew it when it permanently withdrew the ETS.  However, OSHA cautioned:
 

Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule under section 6(c)(3) of the Act, and this action does not affect the ETS’s status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS. See 29 U.S.C. 655(c)(3). 

This means that OSHA will continue to seek a permanent rule requiring private employers to mandate COVID-19 vaccines. OSHA will likely narrowly tailor the rule to  specific industries: “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”¹ 

The Biden Administration issued two executive orders: one applied to federal contractors and the second to federal employers:

1. The Federal Contractor Vaccine Mandate - Executive Order

Executive Order 14042 compels each business contracting with the federal government to require its employees to be vaccinated or lose its contract. After much legal activity, the Eleventh Circuit upheld a nationwide injunction of the federal contractor vaccine mandate. This means that (for now) the federal government cannot require vaccine mandates for employees of federal contractors. The federal contractor vaccine mandate injunction has been appealed and will likely end up in front of the Supreme Court. 

2. The Federal Employer Vaccine Mandate – Executive Order

Executive Order 14043 requires federal employees to be fully vaccinated against Covid-19 (with exemptions available for health or religious reasons) or lose their jobs. On Friday, January 21 a federal court in Texas issued a nationwide injunction prohibiting the enforcement of the federal employer vaccine mandate. This means that the federal government cannot require federal employers to mandate the Covid-19 vaccine for their employees. It is likely that this decision will also be appealed to the Supreme Court. 

State and Local Laws

With injunctions in place blocking the enforcement of most of the federal vaccine mandates (except for the CMS rule for certain healthcare employers), employers should turn their attention to state and local laws. Various states and municipalities have enacted laws regulating employer’s policies with respect vaccines and safety protocols. For example, in Florida employers that implement vaccine mandate programs must provide five specific exemptions, including those who may have antibodies from a previous Covid-19 infection. Employers in Tennessee are strictly prohibited from implementing vaccine mandates, while in New York City, employers must implement a mandatory vaccination program.

Likewise, the rules regarding indoor masks and face coverings vary. For example, Cal-OSHA provides that fully vaccinated employees do not need to wear a face-covering except for certain situations. California employers must document the vaccination status of fully vaccinated employees if they do not wear face coverings indoors. Conversely, in Texas, employers are not subject to mask mandates and may only mandate vaccines if the employer’s policy contains certain exemptions.  Employers should remain vigilant and pay attention to local and state regulatory activity. 

OSHA General Duty Clause

Regardless of the various rules regarding vaccines and face coverings, employers remain obligated to provide a safe working environment under the OSHA General Duty Clause. OSHA has developed specific workplace safety guidance  advising employers to include the following in their safety program:

●  An employee vaccination program
●  Employee daily symptom screening 
●  Mask requirements, especially for unvaccinated workers
●  Social distancing
●  Increased ventilation 
●  Exposure protocols including contact tracing, isolation, and quarantine 
●  Policy training and enforcement
●  Routine cleaning and disinfecting 
●  Follow OSHA COVID reporting and recording rules

Related Employment Laws

Whistleblower and Retaliation Protections: Since the beginning of the pandemic (24 months 2020 – 2021), employees have filed close to 6,000 whistleblower complaints with OSHA. Anti-retaliation and whistleblower claims have become more prevalent as employees express their safety concerns and face seemingly resulting adverse action. Employers should take employee safety complaints and concerns seriously. In some cases, employees may have helpful suggestions and observations or may not be aware of the employer’s safety measures. Transparency and communication are keys to a successful safety program.

Americans With Disabilities Act (ADA): Under the ADA, employers must provide qualified individuals with an accommodation so that he/she may perform the essential function of the job. There are a number of accommodations that employees may require during the Covid pandemic. For example, employees with immunosuppression and/or severe allergies to eggs may not be able to receive the vaccine. Likewise, employees with severe asthma may not be able to wear a mask. Employers should ensure that: (1) they provide clear avenues for employees to request accommodations; (2) they engage in the interactive process; and (3) all medical information remains confidential. Employers seeking ADA guidance can reach out to the Job Accommodation Network which provides a website filled with ADA goodies such as guidance, explanations, sample policies, and forms. 

Family and Medical Leave Act (FMLA): The FMLA has been front-and-center throughout the pandemic and remains an important component of an employer’s leave management policies. Covid has increased employees’ needs for FMLA for themselves and/or to provide care for a sick family member. However, a Covid diagnosis alone does not mean that the employee is eligible for FMLA. For example, the FMLA requires incapacity for three consecutive days along with certain length of service and hours requirements. Moreover, employers must navigate tricky interplay between the FMLA and the ADA. For example, an employee seeking a reduced schedule under the ADA may also be eligible for intermittent leave under the FMLA.  Employers that are unsure of their FMLA obligations can review the DOL Employer’s Guide which provides an easy-to-read roadmap for the FMLA and the required FMLA forms.

Covid continues to provide HR professionals and their employers with complex considerations and circumstances. HR professionals must remain vigilant and informed.  

Note
¹ National Federation of Independent Business, et al., Applicants v. Department of Labor, Occupational Safety and Health Administration, et al. 

Carrie B. Cherveny, Esq., is Chief Compliance Officer and Senior Vice President of Employment Solutions at global insurance brokerage Hub International. She has 20 years of combined experience in employee relations working on the management side providing human resources, employment law, and employee benefits legal guidance. Carrie works closely with clients to identify compliance risks across the organization and develop responsive strategies and solutions that ensure compliance and further the overall organization goals.  Connect Carrie Cherveny