What Can Employers Do Now While OSHA’s COVID-19 Vaccination and Testing Rules Are Temporarily Suspended?
November 2021


Employers now have OSHA’s long-awaited Emergency Temporary Standard (ETS) mandating COVID-19 vaccinations or testing for some workers, but much uncertainty remains about how and whether employers should take action at this point. Hours after OSHA issued the ETS, numerous states and private organizations asserted legal challenges to it — in the U.S. Courts of Appeals for the Fifth, Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits — and the Fifth Circuit subsequently issued a nationwide temporary suspension of the ETS.

The Policy Basics

The ETS requires certain employers to implement a written mandatory policy requiring employees to be “fully vaccinated” (as defined by the ETS). The mandatory vaccine policy may only exempt those employees: (i) “for whom a vaccine is medically contraindicated”; (ii) for whom “medical necessity requires a delay in vaccination”; or (iii) “who are legally entitled to a reasonable accommodation under federal civil rights law because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.”

As an alternative to the absolute vaccine mandate, the employer may implement a written policy providing that employees must either be fully vaccinated or be subject to rules requiring regular testing for COVID-19 and wearing a face covering at work (subject to some limited exceptions). This alternative is generally consistent with EEOC guidance that, if an employee does not want to comply with an employer-initiated vaccine mandate, “as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask … [or] get periodic tests for COVID-19 ….”

Compliance Deadlines

The ETS imposes two compliance deadlines: 1) December 6, 2021, for compliance with all sections of the ETS except for provisions requiring COVID-19 testing of unvaccinated or partially vaccinated workers; and 2) January 4, 2022 for compliance with the COVID-19 testing provisions for those workers. In other words, the covered employer must adopt a policy and confirm the vaccination status of all employees by December 6, and then, if the employer’s policy allows, begin mandatory testing for COVID-19 for unvaccinated or partially vaccinated workers by January 4, 2022.

These deadlines, however, are now in flux as a result of the Fifth Circuit suspension. The DOJ has asked the Fifth Circuit to lift this suspension order and informed the Fifth Circuit that, because there are challenges pending in other circuit courts, the consolidated cases must be heard by a single circuit court randomly selected by the Judicial Panel on Multidistrict Litigation. The DOJ expects the panel to select the circuit court for the consolidated cases by November 16. It is highly unlikely the selected court will issue a decision before December 6, the effective date for the majority of ETS’ provisions.

So what are employers supposed to do now?

The first order of business should be to determine whether the employer is even covered by the ETS if the courts lift the stay or uphold the standard.

The ETS applies to: all employers with a total of 100 or more workers, company-wide, at any time the ETS is in effect. Temporary and seasonal workers are counted as “employees” for purposes of coverage, but independent contractors are not.

The ETS does not apply to: federal contractors and subcontractors subject to President Biden’s Executive Order 14042 or workplaces where employees provide healthcare services or healthcare support services. OSHA also does not have jurisdiction over public employers such as state and local governments.

Many employers might be subject to state versions of OSHA instead. OSHA’s jurisdiction extends directly in 29 states, while other states, including California and Michigan, have their own federally approved workplace safety agencies. Those states have until February 2022 to adopt their own version of the vaccine mandate that is at least equal to the ETS requirements. These states could adopt a tougher version of the ETS and lower the coverage threshold to require compliance by smaller size employers.

Best Practice

Given the federal court stay, businesses covered by the ETS are not legally obligated to adopt an ETS-compliant policy by December 6. But as a best practice, an employer certainly could make a business decision to do so based on the reasonable chance the courts will uphold the ETS mandate. Some legal scholars and commentators are speculating that whistleblowers could play a large part in the enforcement of workplace vaccine rules. If a covered employer has not announced an ETS-compliant policy by the time the court process plays out, its own workers (or union representatives of those workers) could very likely file complaints with OSHA. Rather than scrambling at the last minute, and possibly facing inspections or fines, the prudent company would be prepared with a policy in place if the stay is lifted or if the court upholds the ETS on the merits.

The ETS is complex and has multiple requirements for employers. As always, it is best practice to consult with experienced employment counsel when implementing new policies and procedures.

The Tennessee General Assembly just recently concluded a Special Session limited to the legislature approving financial incentives for the major Ford Motor Company project in West Tennessee. That Special Session wrapped up business in 3 days approving nearly $900,000,000 in incentives that will assist with bringing the largest single manufacturing investment ever to Tennessee. This will create thousands of new jobs in West Tennessee, fulfilling a long-term commitment to the Memphis Regional Mega Site.

As announced on October 20, 2021, enough signatures have been obtained in the Senate and the House of the legislature (two-thirds of each body) to go into a COVID-19 Special Session on October 27, 2021, to address COVID-19 mandate issues. This Special Session appears to be very broad and could result in several issues being addressed by the legislature. The Tennessee Business Roundtable has already issued a policy position letter opposing legislative interference and instead has asked that the legislature not impose mandates or prevent businesses from adopting their own workplace health guidelines. The Tennessee Chamber of Commerce also followed up on October 22, 2021 pleading with the Legislature to not adopt legislation interfering with the ability of Tennessee companies to manage their own operations.  TTA is considering issuing its own position statement, as well, which will closely follow the lead of the Tennessee Business Roundtable and the Tennessee Chamber of Commerce. I expect more trade associations and major companies to do the same.  

The business community as a whole is opposed to the Special Session for COVID-19. There appear to be several members that are pushing to pass legislation that will attempt to interfere with the decisions of private businesses to address COVID-19 issues. This legislation includes penalizing companies for mandating vaccines and requiring testing, penalizing schools for mandating the wearing of masks, and other COVID-19 protection policies. You will find that some members will be introducing legislation that will remove the immunity from liability that has protected businesses and been in place since 2020 in regard to potential COVID-19 litigation. At this time it is difficult to predict the number of bills that will be filed and the COVID‑19 issues the legislature will cover; however, it is expected that any legislation will be very far-reaching in regard to what is required of employers. Companies have adopted different policies across the board to address the challenge of COVID-19 for the past 18 months. Not all policies are the same and some are stricter than others.

Even during the recent Special Session to approve financial incentives for Ford, members filed anti-business legislation.  House Bill 1643, sponsored by Representative Susan Lynn, provides that employers would be liable for COVID‑19 vaccine-related complications should employers require vaccines. House Bill 8003, sponsored by Representative Rusty Grills, would allow individuals who choose to leave their employment because an employer requires a COVID-19 vaccine to continue to receive unemployment benefits based on that choice. These two bills are just examples of what will be filed within the next few days. Please note that these two bills were not heard during the Special Session on the Ford expansion but I expect them to be refiled for the COVID-19 Special Session.

Remember that just because legislation passes, that does not mean it will be upheld in a court of law should the legislation be challenged. As we all know, at this time the federal mandate on employers requiring vaccinations or weekly testing for companies with 100 or more employees is still being developed as an OSHA regulation. No one knows for certain the final rules and regulations issued by OSHA will encompass that will be enforced through TOSHA in Tennessee. Hopefully, as ATA has pointed out, the federal policy will take into consideration that trucking companies operate differently than many other companies in that thousands of truck drivers are on the road delivering goods all across the country, and mandating weekly testing will be a huge challenge for those who don’t want to get vaccinated. In addition, unlike what the Legislative Committee proposed recently, Tennessee just cannot ignore federal OSHA rules and regulations. Trucking is an interstate commerce business and having different policies adopted by several states could be very challenging.

I am confident that there may be little that the legislature can do that would interfere with federal regulations or change the rules on how unemployment benefits are paid. However, I am very concerned about the employers’ exemption from immunity that is now in place in Tennessee in regard to COVID-19 issues. I will continue to keep you updated as we work through this next Special Session which could last for weeks.  If you have any questions, please contact me.