By:
Saba Zafar, Esq.
and
Jaimee K. Wellerstein, Esq.
Litigation and orders surrounding President Biden’s COVID-19 Vaccination Mandates seem to be evolving almost as quickly as COVID-19 itself. As the Omicron variant surges throughout the United States, in a surprising ruling, the Sixth Circuit Court lifted the stay on Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) (more commonly known as Biden’s Vaccine Mandate for Private Employers). Employers are allowed (but not required) to offer employees the option of weekly testing and wearing masks in lieu of mandatory vaccination.
While the original deadline to comply with the ETS was December 6, 2021, in light of the Sixth Circuit’s ruling and the prior stay on the ETS, OSHA has stated that it “will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
Complicating matters for employers even more, the Sixth Circuit’s ruling was immediately challenged. Thus, the fate of the ETS currently rests with the United Supreme Court.
What Does This Mean for Private Employers?
Even with the ETS’s fate looming with the United States Supreme Court, OSHA can currently issue citations to private employers with 100 or more employees (“Covered Employers”) who are not taking steps to comply with the ETS. Employers should therefore start taking good faith steps to comply with the ETS while we await the United States Supreme Court’s ruling. That is, Covered Employers have until January 10, 2022 to comply with the ETS and until February 9, 2022 to comply with testing requirements under the same, so long as the Covered Employer is exercising reasonable, good efforts to come into compliance before OSHA will start issuing citations.
As a reminder, by January 10, 2022, Covered Employers should have a vaccination policy that includes the following:
- Requires employees to be vaccinated (with limited exceptions);
- The process used to determine employee vaccination status;
- The time and pay/leave employees are entitled to for vaccinations and any side effects experienced following vaccinations;
- The procedures employees need to follow to provide notice of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider;
- The testing procedure for those employees who are not vaccinated (see below);
- The company’s masking policy; and
- The procedures to be used for maintaining and requesting records.
Employers must also determine if any employees are exempt from the ETS requirements, determine which employees are vaccinated, ensure that unvaccinated employees are tested once a week and wear face coverings, and all work-related COVID-19 fatalities and hospitalizations are reported to OSHA within 24 hours. Read our recent article for more information on what Covered Employers must do to comply with the ETS.
What About the Federal Vaccine Mandate for Federal Contractors and Healthcare Workers?
The stay on the federal vaccine mandate for federal contractors is still in place as is the stay on Centers for Medicare and Medicaid Services (“CMS”) interim rule requiring healthcare worker vaccinations. However, employers have to comply with all applicable laws. As such, employers who would otherwise be subject to the vaccine mandate for federal contractors and healthcare workers should determine whether the ETS or other laws related to vaccine mandates apply to them and ensure that they comply with all applicable laws.
The information and regulations regarding COVID-19 are emerging rapidly. Since the date of this publication, there may be new or additional information not referenced in this Employer Alert. As rules and regulations related to COVID-19 remain in flux, the attorneys at Bradley, Gmelich + Wellerstein, LLP are here to answer any questions you have. Please always consult with your legal counsel before implementing any changes. We are here to help.
Saba Zafar, Esq. is Special Counsel in Bradley & Gmelich LLP’s Employment Law Department. Saba has over a decade of experience as an attorney, primarily in employment law. Saba focuses her practice of providing strategic advice and counsel in all aspects of employment law and workplace matters, including drafting and implementation of HR policies and procedures, Employment Handbooks, providing advice to clients on personnel issues as well as general business matters.
Prior to joining the firm, Saba was a Senior Counsel providing advice and counsel to mid-sized to large businesses on employment law compliance and day-to-day employment issues, including implementing policies and procedures, employee classifications, employment separations, managing and disciplining employees, and COVID-19 rules and regulations. Saba also handled a wide variety of employment matters in state and federal court, including cases involving wrongful termination, discrimination, and wage related cases.
In her spare time, Saba has volunteered as a Mediator for the Department of Consumer Affairs and the Orange County Human Resources Department. She was also a Volunteer Tutor for Schools on Wheels, tutoring elementary school students on skid row in Los Angeles. Prior to practicing law, Saba was a Judicial Extern for California Court of Appeal, Second Appellate District.
In her free time, Saba enjoys embarking on culinary adventures and catching up on new television shows.
Jaimee K. Wellerstein, Esq. is a Partner at Bradley & Gmelich LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas.
Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies.
Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale-Hubbell, the highest peer rating available. jwellerstein@bglawyers.com