On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an “emergency temporary standard” (ETS) to reduce the risk of COVID-19 (Covid) transmission in the workplace and to protect unvaccinated workers from contracting the virus at work (Vaccine ETS). This Vaccine ETS applies nationwide to employers with 100 or more employees. Under the Vaccine ETS, employers must develop, implement, and enforce a mandatory Covid vaccine policy and determine vaccination status of employees within 30 days, then continue with enforcement measures within 60 days.
A flurry of lawsuits immediately followed with cases filed across the country by states, employers, and religious organizations, challenging the Vaccine ETS’s legality on a plethora of constitutional, procedural, and other legal grounds. A mere two days later, on November 6, 2021, the federal Fifth Circuit Court of Appeals issued a temporary injunction, citing “grave statutory and constitutional issues.” The Court’s temporary order has effectively stopped enforcement of the Vaccine ETS, pending further court briefing, review, and likely further appeal to the U.S. Supreme Court. Additional lawsuits are being filed on a daily basis, expressing widespread objection to such large-scale government intervention, significant concerns about worker privacy, and resulting employer burdens.
What should responsible employers do now? Develop a Covid vaccine policy? Start gathering private medical data, per the Vaccine ETS or otherwise? Given the Vaccine ETS’ apparent extensive legal defects, the best answer may be to watch and wait for what happens next in the legal battles. More boots on the ground, employers should continue addressing workplace safety as they have done since the pandemic’s start, as well as to allow for medical and religious exemptions - as legally required - for any employer-imposed Covid shot mandates.[1] The following sections address related background for OSHA’s Vaccine ETS, notable legal parameters, applicable exceptions, and policy-related cautions, and particularly so that employers can be ready in the event that the OSHA Vaccine ETS is upheld legally or if similar requirements are otherwise imposed.
What is an OSHA “Emergency Temporary Standard”?
OSHA is a federal agency with a specified mission is “to ensure safe and healthful working conditions for workers by setting and enforcing” common standards across the private sector (https://www.osha.gov/aboutosha). OSHA’s official charge is thus to focus on occupational (hence the “O” in OSHA) issues of workplace safety, such as work equipment, chemicals, and hazardous materials. In general, OSHA issues its standards pursuant to a seven-stage rulemaking process, typically taking five years or more.
But OSHA also holds the authority to issue emergency temporary standards upon the conclusion that employees “are subject to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and that an emergency standard is necessary to protect workers. OSHA has previously issued emergency standards relating to pesticides and certain carcinogenic industrial chemicals, and most recently to govern conditions for healthcare workers during the Covid pandemic.[2] In issuing the Vaccine ETS, OSHA thus made the determination that Covid presents a sufficiently grave danger to workers warranting OSHA’s nationwide vaccine requirements.
The Vaccine ETS’ Employee Threshold
The Vaccine ETS requires all employers with 100 or more employees – on an organization-wide basis - to develop, implement, and enforce a policy that requires all employees to receive Covid shots. The magic 100-employee threshold means all employees who are located within the United States, whether they are working in one location, multiple locations, and remotely. Consequently, an organization with 50 employees total is not covered. On the other hand, an organization is covered if it has 50 employees in one location and 50 additional employees working remotely. Likewise, an organization with 99 employees today and 100 employees tomorrow will be covered tomorrow. Seasonal employees and part-time employees are also counted in the total employee census.
Notably, OSHA’s regulations exclude “[a]ny person” who “perform[s] religious services or participat[es] in them in any degree . . . as an employer or employee (29 C.F.R. § 1975.4(c)(1)). This exception thus expressly applies to religious workers, but only in a very narrow capacity that may not be helpful in practical terms. For example, a pastor presumably is excluded under this definition, but apparently only to the extent that he or she is engaged exclusively in religious services – and the term “religious services” is not defined by OSHA.
The Vaccine ETS’ Required Policy – Compliance, Problems, and Penalties
Under the Vaccine ETS, covered employers are required to develop a policy by December 4, 2021 with the following elements: (1) a process for determining the vaccination status of each employee and getting proof of vaccination; (2) the timeframe for employees to get both doses of the vaccine and recover from any side effects; (3) a requirement that unvaccinated workers get tested at least weekly; (4) a procedure setting forth the steps required for employees to take if they test positive for COVID-19; and (5) a way to ensure unvaccinated workers wear masks. This policy requirement raises a host of legal and practical issues for employers.
For example, conventional employment law wisdom has long been to not ask potentially invasive questions about employees’ health, except directly in relation to limited circumstances typically raised by employees. For example, an employee who asks for leave under the Family and Medical Leave Act may provide information about a pregnancy, but little more information than time needed off should be elicited (and not unnecessary details about any medical complications). Similarly, an employee who suffers from a disability such as a heart condition or autoimmune disorder should not be asked for personal medical information – other than the information needed to address “reasonable accommodation” and other disability-related matters specific to the employee’s job performance and the employer’s legal compliance with anti-discrimination laws. Beyond direct job-related information, additional medical details are justifiably private.
OSHA’s Vaccine ETS turns such conventional HR practice on its head, requiring a census of employees’ health information in relation to Covid vaccinations, additional record-keeping for employees’ sensitive medical information, and continued tracking of health information and compliance measures. What’s the penalty for non-compliance? Depending on the number of employees and level of violations, OSHA’s penalties may range from $9,753 to $136,532 per employee – and possibly higher.[3]
Practical implications are quite concerning, as the applicable time frames for compliance are quite short. It is also quite troubling to many employers who are faced with losing employees who may object to Covid shots and are either unable to work remotely (based on the nature of their job) or do not want to provide private medical information, wear masks, or be subject to testing (particularly if it is at their expense and during unpaid time). At this point, given the incredibly extensive range of current litigation, employers may thus wish to wait on any substantial steps toward policy development and related compliance (e.g., requiring private medical information and/or terminating noncompliant employees).
Job or Jab (Or Face Coverings and Testing)
The clear emphasis of OSHA Vaccine ETS is to promote Covid shots among all workers, as a public policy safety measure. Consequently, the Vaccine ETS requires that employees who chooses not to receive the Covid shot must be tested at least once a week and wear a face mask. Employers are to provide up to four hours of paid leave for employees to get vaccinated, as well as paid leave (as employees may have accrued) for any resulting adverse side effects. Employers are not required to pay for any weekly testing or to provide paid time off for testing, although such allowances may be made (as has been common throughout the pandemic). Significantly, the Vaccine ETS requirements do not apply to employees who report to a location where no other individuals are present, employees who work from home, and employees who work exclusively outdoors. But employees who come into the workplace occasionally are subject to testing and masking requirements, as are employees who are not allowed to work remotely (e.g., if their jobs require onsite work responsibilities.) Additionally, booster shots are not mandated.
Especially after the well-publicized bru-ha-ha involving Green Bay quarterback Aaron Rodgers, and with additionally developing scientific information, a reasonable question may be whether a person that has had Covid, exhibits Covid immunity, or has taken other measures to address Covid susceptibility may be excepted from the Vaccine ETS’ shot mandate. OSHA’s answer is no. Per the Vaccine ETS, prior Covid infection, immunity testing, and other similar measures are not sufficiently reliable enough to create any such categorical exceptions.
Honor Religious and Medical Exemptions
The Vaccine ETS recognizes that sincerely held religious beliefs as well as substantiated medical conditions may warrant exemptions from required Covid shots. More specifically, exemptions are available to employees “for whom a vaccine is medically contraindicated,” “for whom medical necessity requires a delay in vaccination,” or for “those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.” Medical exemptions should be granted upon provision of a medical provider’s note or other substantiation. With respect to religious beliefs, the EEOC recently published guidance indicating that employees’ assertions of sincerely held religious beliefs should be honored with minimal questioning.[4]
Additionally under OSHA’s Vaccine ETS, such employees with approved exemptions (and not otherwise excluded per above, such as if they exclusively work remotely), still have to be tested and masked unless “testing for COVID-19 conflicts with a worker’s sincerely held religious belief, practice or observance.” [5] In that case, a question may arise as to whether an employer can assert a sufficiently “undue burden” (in employment discrimination law terminology) to require testing as a condition of continued employment. Depending on the specific job responsibilities, remote work options may or may not provide a counterbalancing “reasonable accommodation.” Other practical issues may arise too with only some employees subject to testing and masking requirements, which are beyond the scope of this article.
Watching and Waiting
The lawsuits filed thus far address a broad spectrum of legal principles. For example, in the case pending in the federal Fifth Circuit Court of Appeals (covering Louisiana Texas, Mississippi, several Louisiana employers and Texas workers are contending that states - not the federal government - hold the authority to pass public health and safety laws regulating the actions of private-company employers, as a classic tenet of constitutional law. In another case pending in the federal Sixth Circuit Court of Appeals (covering Kentucky, Michigan, Ohio, and Tennessee), the Southern Baptist Theological Seminary and Asbury Theological Seminary are asserting objections based on their status as religious institutions, problems with religious/secular distinctions, and concerns about surveillance and compulsion of employees’ healthcare as “a serious intrusion on religious autonomy and free exercise that cannot withstand scrutiny under the First Amendment and the Religious Freedom Restoration Act.” They additionally argue that OSHA has abused its executive power through setting emergency standards to address new occupational hazards, without the ordinarily applicable public comment period and other due process safeguards. Litigants in various lawsuits are also asserting that the OSHA mandate is legally unwarranted since employers have already been allowing testing, masking, remote working, and other arrangements effectively as “reasonable accommodations” under applicable anti-discrimination laws. In other words, why a forced Covid shot now instead?
Without knowing the OSHA Vaccine ETS litigation’s ultimate outcome at this stage, employers may or may not wish to now develop, implement, and enforce a mandatory Covid vaccination policy. If employers do so, they should be very mindful of accompanying employee privacy issues, potentially applicable religious and medical exemptions, and additional religious liberty dynamics (at least for religious organizations or other faith-based employers). In this Covid era, employers have had to be extraordinarily nimble and responsive to a very fast-changing work environment. Continued health and safety measures, attentiveness to worker concerns, and ongoing monitoring of legal developments are all well warranted. Legally compliant employee policies are vitally important too. For large employers with at least 100 employees, they’ll have to wait to find out what exactly that means! Other employers should stay tuned too, as broader issues of employee privacy, health and safety in the workplace, religious liberty rights, and other legal parameters affect everyone.
[1] For guidance regarding employer-required Covid shots absent government mandates, see our June 14, 2021 blog. For more information about religious exemptions and related anti-discrimination considerations, see our October 29, 2021 blog.
[2] An emergency temporary standard issued by OHSA are intended to be quite rare, since they bypass the long rulemaking process. Indeed in OSHA’s 50 year history, the federal agency reportedly issued only nine such standards, with only one surviving legal challenges. See Analysis: OSHA Emergency Covid Rule Imminent, but Vulnerable.
[3] See Penalties for Violating OSHA's Proposed "Vaccine Mandate".
[4] See Vaccinations - Title VII and Religious Objections to COVID-19 Vaccine Mandates, and Religious Accommodation Request Form (sample form with four questions).
[5] Note that under state law, a right of conscience law may additionally provide employees with conflicting legal protection regarding such measures. See, e.g., our September 14, 2021 blog (addressing Illinois’ right of conscience law, which expressly includes “testing” as within its scope; note too that this law was recently amended, with employer liability to be removed as of June 2022).
