|  Share

On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit vacated the stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on workplace COVID-19 vaccinations and testing.

The ETS was initially published in the Federal Register on November 5, 2021. However, it was immediately challenged, and the following day the U.S. Court of Appeals for the Fifth Circuit issued an order temporarily staying its enforcement. Given the number of challenges to the ETS nationwide the matter was transferred, along with all similar matters, to the U.S. Court of Appeals for the Sixth Circuit, which vacated the stay Friday evening. As a result, many of the parties to the consolidated case filed emergency applications for a stay with the Supreme Court. However, while Justice Kavanaugh determines whether review should be granted, employers should take time to carefully review the ETS, for which we have highlighted major components below, and begin promulgating procedures for compliance as OSHA immediately released a revised timeline for enforcement.

The ETS puts in place requirements for all OSHA covered employers with 100 or more employees, except those covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety Guidelines and those subject to the ETS for healthcare employers. This threshold is determined by total employee count company wide and is not limited to specific location or radius. OSHA has stated in its summary that the ETS is intended to cover two-thirds all private sector workers. Additionally, OSHA has explicitly stated that this ETS is intended to preempt any state or local requirements that ban or limit an employer from requiring vaccinations, face coverings, or COVID-19 testing.

The core of the ETS is the requirement that all covered employers must draft and institute a mandatory COVID-19 vaccination policy, or alternatively, a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering in the workplace. The ETS also requires employers to verify the vaccination and/or testing status of every employee, via outlined acceptable forms of proof, and maintain a temporary record of all employee’s vaccination and/or testing status, which OSHA may request at any time. Under the ETS, those employees for whom a vaccine is medically contraindicated; for whom medically necessity requires a delay in vaccination; or those employees with reasonable accommodations related to disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement may be exempted from an employer’s mandatory vaccination policy.

More expensive to employers, however, is the built-in requirement to issue time off to employees for vaccination purposes. The ETS requires that employees be given up to four hours of paid time off to receive each vaccination dose, and reasonable paid sick leave to recover from any side effects experienced following each vaccination.

Many employers may be tempted about the prospect of exempting their workforce under some exclusions which have been included in the ETS, specifically for: (1) employees who do not report to a workplace where other individuals such as coworkers or customers are present; (2) employees while they are working from home; or (3) employees who work exclusively outdoors. However, employers should be careful to fully assess their qualifications under the exclusions as OSHA has intentionally tailored these exemptions to apply to miniscule portions of the workforce. For example, the ETS excludes any employees which occupy vehicles together, work indoors for any more than a de minimis amount of time (i.e., to use a bathroom), or even those who work on substantially completed construction sites from the definition of “exclusively outdoors.”

Employers should also be aware of other minor changes to some standards previously utilized by states in their COVID-19 executive orders. For example, many states had allowed employees to remove their face coverings when being behind plexiglass or similar barriers if the barriers would impede the travel of respiratory droplets when the employee was standing. The ETS now requires the employee to be alone in a room with floor to ceiling walls and a closed door.

Given the expansive nature of the ETS, covered employers should begin preparing immediately for its implementation. To that end, there are two major dates that employers need to be aware of to ensure compliance. The first is January 10, 2022, when all requirements of the ETS take effect, except for testing of employees who have not completed their full vaccination cycle. On February 9, 2022, the full ETS takes effect including the weekly testing requirement of all unvaccinated employees.


This alert should not be construed as legal advice or a legal opinion on any specific facts or circumstances. This alert is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal question you may have. We are working diligently to remain well informed and up to date on information and advisements as they become available. As such, please reach out to us if you need help addressing any of the issues discussed in this alert, or any other issues or concerns you may have relating to your business. We are ready to help guide you through these challenging times.

Unless expressly provided, this alert does not constitute written tax advice as described in 31 C.F.R. §10, et seq. and is not intended or written by us to be used and/or relied on as written tax advice for any purpose including, without limitation, the marketing of any transaction addressed herein. Any U.S. federal tax advice rendered by DarrowEverett LLP shall be conspicuously labeled as such, shall include a discussion of all relevant facts and circumstances, as well as of any representations, statements, findings, or agreements (including projections, financial forecasts, or appraisals) upon which we rely, applicable to transactions discussed therein in compliance with 31 C.F.R. §10.37, shall relate the applicable law and authorities to the facts, and shall set forth any applicable limits on the use of such advice.