The Dec. 5, 2021 deadline for OSHA’s Emergency Temporary Standard (ETS) vaccine mandate has come and gone. So, what should employers be doing?
“Keep marching forward and prepare as if the mandate will go into effect,” said Danielle Capilla, VP of compliance, employee benefits for Alera Group, in the webinar, Federal Vaccine Mandate Legal Challenges. “It’s likely we might not get a court opinion until right before or after the deadline. So, we won’t have much time to get things in order.”
As we told you previously, court injunctions against the OSHA vaccine mandate are going on right now. But it’s important to keep in mind that if the ETS vaccine mandate does go into effect, it was issued with the purpose of preempting inconsistent state and local requirements related to these issues.
Remember, the ETS can only be in place for six months, and then after that it can be replaced by permanent regulations, reminded Capilla. It’s not something that can go on indefinitely.
The original ETS rule required employers with 100 plus employees to develop and enforce a mandatory written COVID-19 vaccine policy by Dec. 5th. Now that the injunction has been halted, “you don’t have to worry about OSHA knocking on your door asking to see a copy,” commented Capilla, “but it could happen in the future.”
We could, however, have a court opinion by the Jan. 4, 2022 deadline, which requires employers to start testing employees if they haven’t been fully vaccinated.
The vaccine mandate is broken down into three parts:
- The 100 plus employee mandate
- The healthcare workers mandate, and
- The federal contractors mandate.
All three parts have been blocked and are in litigation.
“Right now lawyers can’t say this is what absolutely is going to happen because we don’t have a crystal ball,” said Capilla. “But we should be waiting for a court of final opinion to tell us the ruling and whether they think these mandates can be upheld. There’s always the off chance that any of these could end up going to the supreme court.”
What constitutes 100 plus employees?
The mandate applies to employers with 100 or more employees at “any time the ETS is in effect” regardless of where the employees report to work. It also applies for the duration of the ETS – six months – even if the headcount drops below 100.
“This can be a concern for some employers who ramp up around the holiday season and then their headcount drops after the first of the year,” said Stacy Barrow, partner at Marathas Barrow Weatherhead and Lent LLP in the same webinar. “They would still be covered for the duration of the ETS.”
When counting employees, OSHA is including full time, part time, remote, and workers who work exclusively outdoors or who don’t report to the worksite. “While some of these workers have an exemption from the vaccine requirement, you’re still required to count them,” said Barrow.
However, workers coming to you through a staffing agency are counted by the staffing agency, and independent contractors are not factored into the calculation.
While Barrow noted there have been a lot of questions on what to do if you’re a part of a controlled group, affiliated or joint employers, he noted that OSHA doesn’t provide a whole lot of guidance.
“They did mention they aren’t the IRS, and they aren’t using the internal revenue codes section 414 rules for controlled groups. So, that might be one indication of whether a number of related entities are a single employer for OSHA purposes, but it’s not positive. They look at several factors and history case law. It’s a very fact and circumstances type of sensitive test.”
If you think you’re close to the threshold but aren’t sure, seek legal counsel.
On a final note, the ETS vaccine mandate doesn’t include workers covered by the mandate for federal contractors and subcontractors, employees covered by the healthcare ETS, employers with less than 100 employees or public employers in states without OSHA-approved state plans.
OSHA did note that their mandate is being applied in a stepwise fashion, and they may adjust the 100-employee threshold at some point.