US: Federal Vaccine-or-Test Mandate Hits the Lottery System

A week after the Occupational Safety and Health Administration (OSHA) issued its long-awaited vaccine-or-test requirements, a panel of the Fifth Circuit Court of Appeals affirmed its stay of the November 5, 2021 OSHA mandate.  The panel found the federal mandate – which came in the form of a rare emergency temporary standard (ETS) and covers nearly all private employers with 100 or more employees – to be “staggeringly overbroad,” “fatally flawed,” and a “one-size-fits all sledgehammer” that “flunks the cost-benefit analysis.”  The decision effectively puts the mandate on hold while the legal battle over the mandate unfolds.

The legal battle is a unique one, and one that may ultimately be resolved by the US Supreme Court.  Currently, legal challenges have been filed in 11 of the 12 federal circuit courts.  When numerous cases with similar facts and arguments are filed in multiple circuits, the federal court system consolidates these cases and a lottery system determines which federal circuit court will determine the case.  The lottery “winner” will determine whether to keep the Fifth Circuit stay in place and conduct a full review of the legality of the ETS – with its decision likely to be appealed to the US Supreme Court.  The lottery selection is expected to take place today, and we will keep you updated on the selected circuit court.

If the ETS ultimately overcomes these legal challenges, the following is a brief summary of the 154-page ETS, found here, and some of the issues addressed in the FAQ, found here.

The ETS requires covered employers to establish a vaccination compliance program by December 6, 2021.  In issuing this ETS, OSHA does not impose a vaccine mandate, but rather “strongly encourages vaccination,” and provides the floor for what any employer may do to protect its workforce.  If a covered employer allows unvaccinated workers to continue working unvaccinated, by January 4, 2022, such employers are to require face coverings and weekly testing of any unvaccinated employees.  Both of these deadlines are currently stayed due to the Fifth Circuit order.

Who counts among the 100 total employees for an employer to be covered?

• The total number of employees includes employees on a company-wide basis, not on an individual office or location basis
• All company employees, including part-time and fully remote, count towards the total number of employees (even though, as shown below, the ETS requirements themselves apply differently to fully remote employees)
• Independent contractors do not count towards the total number of employees

Which employees are not subject to the vaccine or test requirements?

• Any employee who works fully remotely
• Any employee who does not report to a workplace where other employees or customers are present
• Any employee who works exclusively outdoors (aside from de minimis use of indoor spaces, i.e. multi-stall bathroom or an administrative office)

By December 6, 2021, covered employers must:

• Establish a workplace vaccination policy
• Determine the vaccination status of each employee by retaining a physical or digital copy of acceptable proof of vaccination

• • If such a record is unattainable, the employee may provide a signed and dated statement in which the employee

• • • attests to their vaccination status and states, to the best of the employee’s recollection, the 1) type of vaccine administered, 2) date of vaccination, 3) name of health care professional or clinic that administered the vaccine;
    • attests that they have lost and are unable to produce acceptable proof of vaccination; and
    • includes the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”

• • Maintain records and roster of all employees’ vaccination status
  • Provide each employee with information about this ETS
  • Provide a total of up to four hours of paid time for employee to obtain the primary vaccination dose(s) (“primary” = one or two doses, depending on the vaccine, but not including any booster)
  • Provide paid sick leave for employees to recover from any side effects to vaccination
  • Require all employees, whether vaccinated or unvaccinated, to provide prompt notification of a positive COVID test
  • Require unvaccinated employees to wear face coverings indoors or when occupying a vehicle with another person, except in limited circumstances
  • Report to OSHA any work-related COVID fatalities within 8 hours and work-related COVID hospitalizations within 24 hours

By January 4, 2022, covered employers must:

• Require testing for any unvaccinated employees: weekly testing if in the workplace at least once a week, or within 7 days before returning to work after a week-plus absence

• • Employers are not required under the ETS to pay for weekly testing of unvaccinated employees, but the ETS notes the possibility of an employer being required to pay for testing and/or face coverings under other federal or state laws or collective bargaining obligations.

The ETS sets a floor for what employers of 100 or more workers can do.  For example, a covered employer may wish to impose a true vaccination mandate, subject to religious and medical exemptions, and not concern itself at all with weekly testing and the corresponding January 4, 2022 deadline.

The ETS is also, of course, subject to change, particularly given the multi-district litigation that has mounted against it.  As the national drama – which may include review by the US Supreme Court – over the “grave statutory and constitutional issues” surrounding the OSHA ETS unfolds, employers should consult with counsel to determine if/what portions of the ETS to consider implementing in advance.