OSHA Emergency Temporary Standard Published for COVID-19 Vaccines
6th Circuit Dissolves Stay of OSHA Vaccine Mandate
On Friday, November 5, the Occupational Safety and Health Administration (“OSHA”) published an emergency temporary standard (“ETS”) for COVID-19 Vaccination and Testing in the workplace. The COVID-19 ETS has been colloquially referred to as OSHA’s vaccine mandate, but it includes a number of other provisions related to prevention of COVID-19 in the workplace that dealerships should be aware of as well as exceptions to any requirement that employees be mandatorily-vaccinated. On Saturday, November 6, the Fifth Circuit Court of Appeals entered an emergency stay of the implementation of the COVID-19 ETS, preventing it from going into effect nationwide.
However, on Friday, December 17, the Sixth Circuit of Appeals dissolved the Fifth Circuit’s emergency stay, thereby, at least temporarily, forcing your businesses to begin preparing to comply with the COVID-19 ETS. The Sixth Circuit’s ruling has already been appealed to the United States Supreme Court so dealerships should keep abreast of developments as the effective dates draw closer. Below is an outline of some of the basics of the COVID-19 ETS, but dealerships should consult with their dealer lawyer to ensure they are prepared for compliance.
The COVID-19 ETS applies to private employers with 100 or more employees. The employee count must first be performed on the initial effective date (November 5, 2021) and monitored by the employer thereafter for however long the COVID-19 ETS is in effect. If an employer at any time following the effective date reaches the 100-employee threshold, it would be expected to comply. Additionally, even if the employer drops below the 100-employee threshold, it will still be required to comply if it reached 100 employees at any time during the effective period of the COVID-19 ETS.
The 100-employee count applies regardless of the locations of employees if employed by a single corporate entity. Part-time employees are included in the employee count, but not independent contractors. If a given-dealership does not employ 100 employees within a single corporate entity, but its affiliated dealerships within the automotive group total 100 or more employees and the automotive group is counted as a single employer for OSH Act purposes (i.e., the affiliated dealerships handle safety matters as a single company) then each dealership in the automotive group would be required to comply. For practical purposes, if the automotive group handles certain administrative functions at the corporate level (e.g., human resources, payroll, or legal functions), then it may be required to comply with COVID-19 ETS at all its dealerships; however, the COVID-19 ETS is unclear on this point currently.
The COVID-19 ETS requires employers to develop, implement and enforce a mandatory COVID-19 vaccination policy or otherwise establish, implement, and enforce a policy allowing employees to either get vaccinated or agree to undergo weekly COVID-19 testing and wear a face covering while at the workplace. Employers can, but are not required to cover the costs of COVID-19 testing for those employees who choose not to get vaccinated. Importantly, pool testing does qualify for valid testing under the COVID-19 ETS and this can be a significant cost and time saver for your dealership.
To support an employer’s policy implementation, the COVID-19 ETS also requires employers to determine the vaccination status of each of its employees and maintain documentation of their vaccine status. Employers are also required to provide employees up to four (4) hours of paid leave time to get both their vaccine doses and paid sick time should any employees suffer from side effects after their vaccines. An employer’s program must also require employees to provide notice of a positive COVID-19 test or diagnosis, be removed from the workplace immediately regardless of their vaccination status, and only be allowed to return upon meeting certain criteria. Employers are further required to educate employees on the COVID-19 ETS, the employer’s required plan, and employees’ options thereunder. The COVID-19 ETS also requires mandatory reporting of work-related COVID-19 fatalities and hospitalizations to OSHA and maintenance of records regarding its plan and employees’ vaccination status for examination or inspection by OSHA.
Notably, the requirements in an employer’s adopted plan (or alternatively, its mandatory vaccination policy) do not apply to employees that do not report to a workplace where other individuals are present, employees that work from home and employees that work exclusively outdoors. Also, any mandatory vaccination policy implemented by an employer must allow for accommodations on the basis of sincerely-held religious beliefs or medical diagnoses. The vast majority of the requirements of the COVID-19 ETS were set to become effective on December 5, 2021, but this deadline was stayed by the Fifth Circuit.
Based on the Sixth Circuit dissolving the Fifth Circuit’s stay, most of the requirements under the COVID-19 ETS will begin to be enforced by OSHA on January 10, 2022. But, the vaccination or testing requirement will not be enforced until February 9, 2022. OSHA can assess penalties of $13,653 per violation, with the ability to penalize employers at that amount daily until they comply. Willful or repeat violations allow for the assessment of a maximum penalty of $136,532 per violation. The COVID-19 ETS will remain in effect until such time as the COVID-19 pandemic abates and OSHA withdraws or amends the COVID-19 ETS. Finally, if your dealership operates in a state with OSHA-approved State Plan it should monitor whether that agency adopts this COVID-19 ETS or implements its own, which would need to be at least as strict as the COVID-19 ETS issued by OSHA.