Appeals Court Reinstates Mandate for Private Employers, Cal/OSHA Issues Additional Guidance for California Employers

On Friday December 17, 2021, the 6th Circuit Federal Court of Appeals reinstated the Occupational Safety and Health Administration’s (OSHA) federal emergency temporary standard (ETS) for COVID-19. The 6th Circuit decision reverses the stay ordered in November by the 5th Circuit and allows OSHA to resume ETS implementation and enforcement nationwide.

The ETS establishes a mandatory vaccination policy requirement for private employers with 100 or more employees. The rule also requires companies to determine who among their workers are vaccinated and who are not, and to enforce mask wearing and regular testing requirements for unvaccinated workers.

ETS opponents have already filed an appeal with the U.S. Supreme Court, challenging the 6th Circuit’s decision and asking it to immediately block the mandate.

Important Deadlines

The new deadline for most requirements under the ETS is January 10, 2022. OSHA has published the following guidance regarding the reinstatement:

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

Impact on Employers

The 6th Circuit’s decision suggests the ETS may survive its legal challenges. Employers subject to the ETS should monitor legal developments closely. They should also consider what measures they would need to adopt to be considered to have made reasonable, good faith efforts to comply if the Supreme Court upholds the ETS.

Fisher & Phillips, LLP (Fisher Phillips), a highly respected and reputable law firm, recommends the following actions that employers can take now in order to prepare for the January 10 and February 9 requirements:

• Determine if you are covered by the ETS. Work with your workplace safety counsel to answer the following questions: Is your workplace covered by OSHA normally? If so, do you have more than 100 employees nationwide? Or are you exempt because you are covered by either the Healthcare COVID-19 ETS or Federal Contractor mandate?
• If you are covered by the ETS, gather vaccine status information on your workforce and develop the required vaccination roster for employees, noting whether or not they are fully vaccinated as defined under the ETS. This information (the percentage of vaccinated workers) will allow you to determine if you will mandate vaccines or conduct testing under the ETS.
• Depending on your decision, develop the required mandatory vaccine and/or testing/masking policies required under the ETS – and make sure they are adapted to your own unique workplace. While you don’t necessarily need to implement these policies before January 10, you should be ready to implement them as soon as possible and be prepared to demonstrate good faith efforts to put them into place. Of course, if your organization has low risk tolerance, you could proceed with implementing the policies before January 10.
• Develop programs that would allow you to conduct compliance training for your managers and deliver information about your policies to your employees as required under the ETS. You may want to conduct this training and start your informational campaign before the January 10 deadline to further demonstrate your good faith efforts.
• If you decide to provide the COVID-19 testing option, then in addition to implementing the above requirements by January 10, you should be prepared to have unvaccinated employees demonstrate proof of a negative test as of February 9.

Cal/OSHA Amends its ETS

While this summary focuses on the reinstatement of the federal mandate for private employers, it is also important to note that on December 16 the Cal/OSHA Standards Board voted to adopt its Cal/OHSA COVID-19 Regulations for a second time, extending its effect through the middle of April 2022. In addition, it made several amendments to Regulations.

Some of the more significant amendments include those related to the definitions for “COVID-19 test”, “face covering”, “fully vaccinated” and “worksite”.

In addition, employers must offer testing at no cost to all employees who experience a close contact exposure, regardless of their vaccination status, unless the employee recently recovered from a COVID-19 case within the preceding 90 days. The amended regulations also permit fully vaccinated employees who have come into a close contact exposure, to remain in the workplace as long as they wear a face covering and maintain six feet of physical distance from others for 14 days following the exposure. New return-to-work requirements also apply to unvaccinated employees coming into a close contact exposure, depending upon whether or not they have symptoms related to COVID-19.

ADDITIONAL INFORMATION

The complete Fisher Phillips article is available here. A link to register for their webinar on Tuesday, December 21 is available here.

We will continue monitoring any developments and provide further information as soon as it becomes available.

Please contact your Burnham Benefits Consultant or Burnham Benefits at 949‐833‐2983 or inquiries@burnhambenefits.com.

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