OSHA’s “Vax-or-Test” ETS: Where Do We Go From Here? (US)Daniel Pasternak and Laura Lawlesson January 18, 2022 at 4:55 pm Employment Law Worldview


By now, employers know that on January 13, the United States Supreme Court stayed the controversial “Emergency Temporary Standard” (ETS) issued by the U.S. Occupational Safety Administration (OSHA). (See our post discussing the Court’s ruling here). Now that the dust has settled somewhat, employers that would have been subject to the ETS had the Supreme Court not stayed it – those with 100 or more U.S. employees – have been left to grapple with what, if any, actions they should take now that the ETS has been put on hold. Should they rescind polices put in place solely to comply with the now-stayed ETS? Can they keep those policies in place, and implement them, notwithstanding the stay? What should they do with the information they collected, as they were required to do under the ETS, concerning their employees’ vaccination status?

Before getting into those issues, however, let’s first establish what the status of the ETS is as of this moment. Although the Supreme Court majority that stayed the ETS strongly suggested that OSHA exceeded its authority when it issued the ETS, the Court did not invalidate the ETS. Instead, the Supreme Court stayed the ETS – which means it is on hold – pending consideration of the merits of the legal arguments related to it. The Supreme Court ordered the case back to the United States Court of Appeals for the Sixth Circuit for that court to hear the merits of the parties’ arguments for and against the ETS. But, importantly, the Supreme Court’s order not only stayed the ETS while the Sixth Circuit considers the case, but also during the period after it issues its ruling until either the period for a losing party to appeal the case back to the Supreme Court does so and the Court either denies that appeal (in which case the Sixth Circuit’s decision would be final), or the Supreme Court accepts the appeal (the Supreme Court can decline to do so) and then issues its decision on the merits, which would then be the final word on the matter.

Given that the ETS therefore cannot go into effect until after what undoubtedly would be a many-months-long process of hearings, briefings, and further appeals, there’s a considerable amount of speculation that the Biden Administration – reading the tea leaves of the Supreme Court’s majority’s opinion – may elect to withdraw the ETS rather than engage in protracted and likely unsuccessful further litigation.

Whether the ETS is stayed or even withdrawn, employers need to decide what to do next on a number of ETS-related issues.

Can an employer rescind the policy it implemented to comply with the ETS?

Right now, yes. The order staying the ETS means that all compliance deadlines set by OSHA relating to the ETS, including the policy development and implementation requirements, are suspended. Therefore, an employer that put a policy in place to comply with the ETS can rescind that policy now, if it chooses to do so, but also should be prepared to reinstate the policy if the stay on the ETS is lifted.

Can an employer proceed with its ETS-compliant plans, even though the ETS is presently stayed?                                                                                              

Yes. Nothing in the Supreme Court’s ruling staying the ETS prohibits employers that would otherwise be required to comply with the ETS from moving forward with plans developed to do so. That means that employers can have mandatory vaccination policies, or may implement mask-and-test requirements for unvaccinated employees. With the recent surge of the omicron variant and the possibility of future variants, employers may well want to implement policies they spent considerable time and resources to develop, and which will serve to enhance employee health and safety.

Are employers that gathered employee vaccination information as part of an ETS-compliant policy now required to delete or destroy that information?

No. Nothing in the Supreme Court’s ruling requires employers which, acting in compliance with the requirements of the ETS, gathered information concerning the vaccination status of their employees. At the same time, nothing prohibits an employer from deleting or destroying that data either (provided it is done in such a manner to preserve the confidentiality of that information). It likely makes more sense to retain the information until there is a final decision on the ETS. Otherwise, in the unlikely chance the stay is lifted and the ETS is allowed to go into effect, an employer will have to undertake the time-consuming data collection process all over again.

Do employers have to give employees paid time off to receive or recover from the side effects of the COVID-19 vaccine?

Among the requirements of the ETS, covered employers were obligated to provide up to four hours of paid time off to employees in order to receive a COVID-19 vaccine, as well as allow employees to use accrued paid sick leave to recover from any side effects of the vaccine, or, if the employee did not have accrued paid sick leave, to provide reasonable paid time off to recover from any vaccine-related side effects. Because the ETS has been stayed, employers that otherwise would have had to provide these paid leave benefits no longer need to do so. However, because a considerable number of states and municipalities have their own laws requiring employers to provide paid sick leave to employees, employers should double-check whether there are any other legal requirements in the jurisdictions in which they do business that obligate them to provide paid time off to employees to receive, or to recover from the side effects of, the COVID-19 vaccine.

So what should we do?

There’s no one-size-fits-all answer here, and whatever path an employer chooses, whether that’s to move forward with a mandatory vaccination requirement, to implement mask-and-test requirements, or to return to pre-ETS protocols, that decision will make some employees happy and leave other employees very upset. Prior to the ETS, employers already were required under OSHA’s General Duty Clause (and, in some cases, under industry-specific OSHA guidelines and/or state and local requirements) to implement appropriate health and safety measures to respond to the threats posed by COVID-19. Those obligations survive, notwithstanding the stay of the ETS, so if an employer chooses to unwind its ETS policy, it should nonetheless ensure that it is following reasonable infection prevention and mitigation strategies to reduce the risks associated with exposure to the virus.

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