Should OSHA’s Emergency Vaccine Rule Become a Permanent Standard?

Labor Department extends comment period on proposal for final rule

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Man being tests for COVID-19


[Update: The Supreme Court halted OSHA's ETS on Jan. 13, and OSHA officially withdrew the rule, effective Jan. 26. OSHA is still considering a permanent standard.]

The Occupational Safety and Health Administration (OSHA) is giving private employers and other members of the public more time to comment on whether to make permanent its emergency temporary standard (ETS) directing certain businesses to ensure workers are vaccinated against the coronavirus or undergo weekly COVID-19 testing.

OSHA has suspended implementation and enforcement activities related to the ETS in response to a court order that temporarily halted the directive, but the agency said it "remains confident in its authority to protect workers in emergencies" and "the comment period is separate from the litigation."

OSHA, which is part of the U.S. Department of Labor, published the ETS in the Federal Register on Nov. 5. Among other COVID-19-related safety rules, the directive requires businesses with at least 100 employees to ensure employees who are not fully vaccinated wear masks by Dec. 6 and submit proof of a negative COVID-19 test on a weekly basis starting Jan. 4.

"The ETS also acts as a proposal for a permanent standard, and OSHA has decided to extend the comment period for that rule by 45 days," according to the agency. Written comments must be submitted by Jan. 19, 2022, to www.regulations.gov in Docket No. OSHA-2021-0007.

The ETS can remain in place only for six months. "After that time, it must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process involving a typical notice-and-comment period," according to law firm Fisher Phillips.

Sharing Experiences

OSHA is seeking comments on all aspects of the ETS and whether it should become a permanent standard. "OSHA encourages commenters to explain why they prefer or disfavor particular policy choices, and include any relevant studies, experiences, anecdotes or other information that may help support the comment," according to the agency's request.

Some of the areas of interest that OSHA highlighted include:

  • Whether employers with fewer than 100 employees should be covered by a potential final standard, and whether such employers are currently requiring workers to get vaccinated (either with or without offering alternatives, such as testing and masking) and what benefits and challenges they have experienced. ­­
  • Whether the scope of the rule should change to address the significant risk posed by COVID-19 in the workplace. For example, should portions of the rule, such as masking requirements, apply to fully vaccinated workers?
  • Whether the agency should consider additional scientific information about prior COVID-19 infection and immunity. "Given scientific uncertainty and limitations in testing for infection and immunity, OSHA is concerned that it would be infeasible for employers to operationalize a standard that would permit or require an exception from vaccination or testing and face covering based on prior infection with COVID-19," the agency said.
  • Whether OSHA should impose a strict vaccination mandate with no alternative compliance options.
  • What types of COVID-19 vaccination policies employers have implemented to protect workers, whether vaccination is mandatory or voluntary under the policy, what type of leave is offered, and what percentage of their workforce was vaccinated as a result.
  • Whether employers have COVID-19 testing and removal policies and what those policies require.
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Planning While Litigation Ensues

On Nov. 6, the 5th U.S. Circuit Court of Appeals temporarily suspended OSHA's ETS while it considered a challenge brought by state attorneys general and private employers that oppose the directive. The employers argued that OSHA's "claimed authority over [employees'] private lives and vaccine status is an egregious government overreach." On Nov. 12, the 5th Circuit reaffirmed its suspension of the rule. 

Similar challenges to the ETS were filed with other federal appeals courts, and the cases will now be heard by the 6th U.S. Circuit Court of Appeals in a consolidated action.

On Nov. 23, the U.S. Department of Justice (DOJ) asked the 6th Circuit to reinstate the ETS. "Delaying this standard would endanger many thousands of people and would likely cost many lives per day," according to DOJ documents filed with the court.

Ultimately, the U.S. Supreme Court could decide the fate of OSHA's ETS. But employment law attorneys say businesses shouldn't wait for a final answer from the courts to start planning. "There's just not enough time to get ready for the ETS if you don't start now," said Julie Vanneman, an attorney with Dentons in Pittsburgh. 

Kristin White, an attorney with Fisher Phillips in Denver, recommended that employers provide notices and start gathering vaccination information now. "Then, they can hold off finalizing the plan and testing for a couple of weeks while they gather vaccine information and the litigation moves forward." 

Employers may also choose to implement a vaccination policy regardless of the litigation outcome, since the ETS establishes minimum requirements for covered businesses. 

Many large businesses—including tech companies, major airlines and health care facilities—have already implemented vaccination mandates for some or all of their workers, and courts have generally upheld such policies.   

Some business groups, however, oppose strict standards. "It is critical that the rule not cause unnecessary disruption to the economy, exacerbate the pre-existing workforce shortage or saddle retailers, who are already taking considerable steps to keep their employees and customers safe, with needless additional requirements and regulatory burdens," said David French, the National Retail Federation's senior vice president for government relations. 

Based on the 6th Circuit's briefing schedule, the order temporarily halting the ETS will likely remain in place until at least Dec. 10, according to law firm Bracewell. "However, it is possible that, before Dec. 10, the 6th Circuit lifts the stay," Bracewell attorneys said in a blog post. "If the stay is lifted, the ETS requirements could become effective on the date of the court's order or on a later date set by the 6th Circuit." 

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