APPELLATE COURT STAY LEADS TO SUSPENSION OF OSHA’S COVID-19 EMERGENCY TEMPORARY STANDARD

Earlier this month, OSHA adopted an Emergency Temporary Standard for COVID-19 Vaccination and Testing (the “ETS”) for large employers. Covered employers that do not comply with the requirements could be subject to OSHA penalties for “Serious” violations, which come with fines potentially in excess of $13,000 for the first violation, but also the connotation that comes with having an OSHA violation on your record. This connotation can result in increased insurance premiums and difficulties with Owners and General Contractors when bidding work. Last Friday, a Federal Appellate Court issued a stay against enforcement of the ETS until the Court could undertake an adequate review of its legality. In response, OSHA has confirmed that it will temporarily suspend enforcement of the ETS, though its lawyers intend to fight to allow enforcement in the future. This article provides a roadmap of what the ETS would have required if not for the current suspension, and also provides points for contractors to consider to determine if they would be covered under the ETS.

The COVID-19 ETS Covers Employers with 100 or More Employees

Contractors only have to comply with the ETS if they have 100 or more employees. Contractors must count their employees across all locations. However, unlike most OSHA rules, your subcontractor’s employees on a job site do not count as your employee for purposes of the ETS. Furthermore, contractors do not need to count employees of a staffing agency for purposes of determining if they are covered under the ETS. Only the staffing agency will count those employees. Note however, that once you are subject to the ETS, you will need to continue to comply with its requirements even if you later reduce your workforce to less than 100 employees.

The Requirements of OSHA’s COVID-19 ETS

If not for the stay and OSHA’s confirmation that it will suspend enforcement, OSHA’s COVID-19 ETS would have required that covered employers to do the following by December 6, 2021:

     1. Implement and enforce a written policy that either: (a) requires mandatory vaccination among employees; or (b) requires employees to either get vaccinated or elect to undergo COVID-19 testing once every 7 days and wear a face covering at work. OSHA has done the leg work, providing sample policies that meet the requirements. You can access the sample mandatory vaccination policy here: https://www.osha.gov/sites/default/files/covid-19-ets2-sample-mandatory-vaccination-policy.docx. The sample vaccination or testing and mask policy can be found here: https://www.osha.gov/sites/default/files/covid-19-ets2-sample-employee-choice-vaccination-policy.docx.

      2. Determine and maintain records of employees’ vaccination status;

      3. Provide support for employee vaccination, including:

                    a. Providing a reasonable amount of time, including up to 4 hours of paid

                        time at the employee’s regular rate of pay for the employee to get

                        vaccinated; and

                     b. Provide a reasonable time and paid sick leave to recover from the side

                         effects of vaccination.

      4. Require employee notification of a positive COVID-19 test, which includes requirements of removal of the employee from the workplace and standards for when they can return;

      5. Require face coverings for unvaccinated employees;

      6. Provide information to employees regarding the requirements of the ETS and providing employees with a document regarding vaccine efficacy, safety, and the benefits of being vaccinated, which is available at the following link: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html;

       7. Report COVID-19 fatalities or hospitalizations in the same way as other workplace injuries; and

       8. Maintain records of the company’s COVID-19 ETS policy, vaccination records, and recording adverse side effects of the vaccine in the company’s OSHA 300 log.

Furthermore, for companies electing to implement a policy that allows for vaccination or testing, the ETS would have required mandatory testing (occurring every 7 days)  beginning on or before January, 4, 2022.

Individual Employees Excepted

Some individual employees can be excepted from the requirements of the ETS, including those who: (1) do not report to a workplace where other individuals such as coworkers or customers are present; (2) are working from home; or (3) work exclusively outdoors. With respect to the third exception, it is important for contractors to note that a structure under construction may not be considered outdoors. As a general rule, once walls have been constructed the structure will not meet this exception. Furthermore, employees that work the majority of the time outdoors but do spend time in a construction trailer during the day may not meet the exception. Similarly, employees that travel to the construction site with other employees in the same vehicle will not qualify for the exception.

Additional Resources

A more comprehensive summary of the ETS, its requirements and exceptions has been made available by the Associated General Contractors of America (the “AGC”) and can be accessed here:

https://www.agc.org/sites/default/files/Files/Govt%20Regulations%20and%20Executive%20Orders/AGC%20Summary%20of%20Vaccine%20and%20Testing%20ETS%20-%2011.09.2021.pdf

If you have any questions regarding the requirements of the ETS, whether your company is covered by its requirements or any other OSHA requirements, please do not hesitate to contact Kyle Ohlenschlaeger or Bruce Loren at Loren & Kean Law. We will continue to monitor and keep you posted of new developments in the court system and in OSHA’s policies that could impact enforcement of the ETS in the future.Bruce E. Loren and Kyle W. Ohlenschlaeger of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law, employment law, and complex commercial litigation. Mr. Ohlenschlaeger focuses his practice on construction law and a wide range of commercial litigation disputes. Mr. Loren has achieved the title of “Certified in Construction Law” by the Florida Bar, exemplifying the Bar’s recognition of this expertise. The firm’s construction clients include owners/developers, general contractors, specialty contractors in every trade, suppliers and professional architects and engineers. Mr. Loren and Mr. Ohlenschlaeger can be reached at [email protected] or [email protected] or 561-615-5701.

Contributing Advisors