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As many know, the Biden Administration announced its “Path out of the Pandemic” on September 9, 2021, promising, among other things, that the Occupational Safety and Health Administration (OSHA) would be issuing an Emergency Temporary Standard (“ETS”) regarding COVID-19 vaccinations for certain United States employers. OSHA has not yet published the ETS, and the ETS’ proposed language has not otherwise been publicly-disclosed. Nevertheless, we expect to see the ETS relatively soon, perhaps within the first few weeks of November. So, what do we know about the ETS and what can we surmise?

What We Already Know

Employers with 100 or more employees will be required to ensure that their employees are fully-vaccinated against COVID-19, or require any employees who remain unvaccinated to produce a negative test result on at least a weekly basis before coming into work. In addition, subject employers will be required to provide unvaccinated employees who wish to become vaccinated with paid time off to do so.

What We Can Reasonably Anticipate   

First, the ETS will almost certainly require employers to obtain proof of vaccination status from their employees. Hopefully the ETS will contain some detail regarding what level of proof may/may not be necessary, but, at this point, it seems likely that OSHA will require employers to obtain copies of employee vaccination cards and/or confirmation of vaccination status from employee health care providers.

Second, the ETS will almost certainly require employers to take valid employee exemptions into account, including for medical and religious reasons, and excuse employees with such exemptions from the vaccination requirement. It will be interesting to see whether the ETS gets into any detailed discussion regarding potentially acceptable accommodations for employees with valid vaccination exemptions, or whether it simply points to the weekly testing option as the recommended (or required) step employers should take.

Third, the ETS will presumably outline the specific testing regime that employers will be required to have unvaccinated employees follow before coming to work. How detailed this outline will be is an open question. However, at this point, hopefully the ETS will describe the type of test unvaccinated employees will need to take (i.e., a rapid antigen test versus a pcr test), how the test results should be conveyed to their employers, and how close to the start of the workweek an employee must take his/her test, among other things.   

Unanswered Questions

At this point, though we have some information and can reasonably anticipate a great deal of what the ETS will likely provide, a number of significant questions remain unanswered. These include (but are certainly not limited to) the following:

• How will the number of employees be counted?

Obviously, for employers with clearly less/more than 100 employees, this issue will not be of any concern. But the issue is definitely important for those employers with an employee population right around the threshold. It is likely the ETS could incorporate a rule similar to what the Department of Labor currently uses to count employees for purposes of the FMLA – essentially, looking to the number of employees listed on an employer’s payroll over a certain number of weeks without regard to whether they are full-time or part-time – but OSHA could easily decide to go in a different direction. 

• Who will pay for the testing – the employers, the government or the employees?

This is a pretty big question, and one that we have gotten repeatedly from clients. At this point, the answer is really an unknown. The best guess – based in part on the fact that the ETS is limited in its application to larger employers, and that employers are otherwise required to incur expenses on their own to protect employees from workplace hazards – is that employers will be required to pick up the tab. That said, this belief could prove to be wrong, and/or the ETS may allow employers some wiggle room in passing certain costs onto their unvaccinated employees.

• Will the ETS survive the anticipated legal challenges?

Based upon the immediate public backlash from some groups following the Administration’s announcement of the vaccination rule, undoubtedly, the ETS will be subject to several legal challenges, quite possibly within hours of when it is finally published. Whether the ETS will survive those challenges is really an unknown. It certainly seems possible a court would rule that OSHA cannot meet/has not met its burden to demonstrate that workers are “in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them,” especially in light of the fact that high percentages of employers’ workforces are already vaccinated against COVID-19. In addition, the history of previous Emergency Temporary Standards is mixed – approximately half have faced no legal challenge or survived legal challenges, the other half have been partially or entirely enjoined. It may very well be that this particular ETS is subject to an injunction and/or is struck down in-full or in-part in relatively short order. We will all have to stay tuned.      

DeWitt will continue to watch like a hawk for the ETS and/or any new details that may emerge with respect to the vaccination rule, and will produce additional articles as appropriate. In the meantime, if you need any guidance regarding any of these issues, please feel free to contact John Gardner or any other member of DeWitt’s Employment Relations practice group.