On November 6, 2021, the 5th Circuit Court of Appeals ordered a temporary stay on OSHA’s Emergency Temporary Standard (ETS) on mandatory COVID-19 vaccination and testing for the workplace for organizations with more than 100 employees. The ETS had been released just two days previously on November 4^th. In addition to this filing with the 5^th Circuit, there have been numerous challenges filed in other U.S. Circuit Courts of Appeals.

While the order temporarily blocks the ETS from taking effect on a nationwide basis, the law has not been officially delayed or vacated even though it will not be enforced until a decision is made regarding its legality. The Department of Justice has requested, in accordance with Congressional procedures, that the multiple court filings in the various Circuit Courts of Appeal be consolidated into one case to be heard by one circuit court. In accordance with those procedures, the Panel on Multidistrict Litigation has 10 days (November 16^th) to select one circuit court to hear the consolidated proceedings. As a result, employers should assess whether or not they are subject to the ETS. If so, they should continue in their efforts to understand and prepare for compliance with its various provisions. Among the action items to consider at this time are the following:

• Draft written vaccination and testing policy and procedures by December 6^th or amend existing policies and procedures to comply with the ETS requirements so that a compliant policy will be ready-to-go when, and if, the ETS takes effect
  • Decide whether the policy will be to require all employees to be vaccinated or to allow for unvaccinated employees to be tested on a weekly basis
  • Designate who at your organization will be responsible for administering the policy
• Research the various testing options and costs and how to effectively implement them
  • Decide whether your organization will absorb the cost of testing or require employees to pay for their testing
• Draft procedures should include the following:
  • Procedures for determining employees’ vaccination status
  • A plan that addresses employee non-compliance
  • Procedures for handling religious and/or medical accommodations
  • A roster to record employees’ vaccination status
  • Reporting and recordkeeping procedures
  • Addressing the requirements for remote workers
• Ensure compliance with state or local requirements
  • States and local municipalities might have requirements that go further than the requirements of the ETS
• Communicate to employees by December 6^th
  • Communicate finalized policies and be prepared to implement said policies with January 4th requirements in mind

The fines for failure to enforce this ETS can be costly for organizations. Non-compliance fines are $13,653 for each violation of the ETS and can be as high as $136,532, each violation, for willful or repeat violations. The ETS states that OSHA record requests of your organization’s COVID-19 plan and documentation, which includes vaccination records and test results, must be provided the next business day. However, within 4 hours of a request, the company must provide the written policy, as well as aggregate the numbers of vaccinated employees and the total number of employees at the organization.

It’s also important to note that OSHA has already begun discussions on whether the ETS should apply to companies of all sizes.

IMPORTANT DEADLINES

ADDITIONAL INFORMATION

OSHA resources, including  ETS COVID-19 Vaccination and Testing resources can be found here, the OSHA FAQs here, and links to policy templates here.

Additional communication will be released soon regarding an on-demand webinar that will be made available to our clients and prospects no later than early next week.

In the meantime, please contact your Burnham Benefits Consultant or Burnham Benefits at 949‐833‐2983 or inquiries@burnhambenefits.com.

Burnham Benefits does not engage in the practice of law and this publication should not be construed as the providing of legal advice or a legal opinion of any kind. The consulting advice we provide is intended solely to assist in assessing its compliance with the Patient Protection and Affordable Care Act and other applicable federal and state law requirements, and is based on Burnham Benefit’s interpretation of federal guidance in effect as of the date of this publication. To the best of our knowledge, the information provided herein, and assumptions relied on, are reasonable and accurate as of the date of this publication. Furthermore, to ensure compliance with IRS Circular 230, any tax advice contained in this publication is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the United States Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter.