Update: OSHA’s Emergency Temporary Standard for Private Employers & Impact of Pending Legal Challenges

Our November 5 alert mentioned legal challenges to OSHA’s ETS for private employers. On Saturday, one challenge resulted in a temporary stay of the ETS by the Fifth Circuit Court of Appeals in BST Holdings v. OSHA, Case No. 21-60845, citing “grave statutory and constitutional issues with the mandate.” Briefing on that challenge, which is one of no fewer than six similar federal court challenges, is ongoing.

While these legal challenges play themselves out, employers subject to the ETS (those with more than 100 employees who are not subject to the federal contractor rules or the CMS for health care providers) are well-advised to continue to prepare to meet the earliest effective date for any of the ETS requirements (December 6, 2021) by doing the following:

• Determine the vaccination status of each employee, and obtain and maintain acceptable proof of vaccination. If an employee is unable to provide proof of vaccination in one of four acceptable formats (e.g., copy of the COVID-19 vaccination record card), the employee may provide an attestation that meets certain ETS requirements.
• Begin requiring all unvaccinated employees to wear masks regardless of prior COVID-19 infections. The ETS requires such measures as of December 6.
• Develop and maintain a roster listing each employee’s vaccination status—whether each employee is fully vaccinated, partially vaccinated, not fully vaccinated due to a medical or religious exemption, or not fully vaccinated because they have not provided acceptable proof of their vaccine status.
• Decide whether you are going to provide a testing option or will have a mandatory COVID-19 vaccination policy.
• Develop a mandatory COVID-19 vaccination policy, or a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a mask at work in lieu of vaccination. The ETS provides sample policies and FAQs.
• If you are developing your own mandatory vaccination policy, it must require vaccination of all employees, except for those for whom a vaccine is medically contraindicated, for whom medical necessity requires a delay in vaccination, or those legally entitled to reasonable accommodation due to disability or sincerely held religious beliefs, practices or observances that conflict with the vaccination requirement.
• Develop a program that provides employees up to four hours of PTO during work hours for vaccinations. This PTO is in addition to any other PTO that the employee has accrued, and must be paid at the employee’s regular rate of pay. There is no PTO requirement for employees who receive vaccines outside of their regular working hours.
• Develop a program of reasonable paid sick leave for recovery from side effects due to vaccination. In its preamble to the ETS, OSHA states that providing two days of paid sick leave per primary vaccination dose will comply with this requirement. Employers may require employees to use paid sick leave benefits already accrued by employees, but cannot require employees to accrue negative paid sick leave benefits or borrow against future paid sick leave to cover reasonable time needed to recover from vaccination.
• Develop procedures that require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider. Per the ETS, employers must immediately remove the employee from the workplace (regardless of the employee’s vaccination status), and keep the employee out of the workplace until specific return-to-work criteria from the CDC are met.
• Develop procedures for reporting work-related COVID-19 fatalities and work-related COVID-19 hospitalizations. Beginning December 6, the ETS requires employers to report work-related COVID-19 fatalities to OSHA within eight hours of learning about them, and work-related COVID-19 hospitalizations within 24 hours of the employer learning about the hospitalization. OSHA has previously issued guidance that is instructive on determining whether a COVID-19 fatality or hospitalization is “work-related.”
• Put processes in place that will allow your company to timely respond to employee and OSHA requests allowed by the ETS. After December 6, employers will have four business hours after an OSHA request to provide OSHA with a copy of the employer’s written vaccine mandate policy, the aggregate number of fully vaccinated employees at a workplace, and the total number of employees at that workplace. Employers will have one business day after an authorized request to: (1) provide OSHA with all other records and documents required to be maintained by the ETS, and (2) provide employees with their individual COVID-19 vaccination documentation and test results, the aggregate number of fully vaccinated employees at a workplace, and the total number of employees at that workplace.

United Airlines Vaccine Case Update—What You Should Know

Many employers are closely following the case of Sambrano, et al. v. United Airlines, Inc., Case no. 4:21-cv-01074-P (N.D. Tex.), particularly in light of the plethora of cases in litigation in which TROs and/or preliminary injunctions have been sought. Late yesterday, the Court entered an order DENYING Plaintiffs’ request for a preliminary injunction. What follows is a brief rundown of what you should know about this case:

The Issue: United implemented a policy requiring vaccination of all employees. The policy permitted employees to apply for religious or medical exemptions. If an exemption was granted, United offered the accommodation of indefinite unpaid leave (though those with medical exemptions were permitted to use accumulated sick-leave pay until it was exhausted, followed by placement on indefinite unpaid leave).

The Claims: Plaintiffs filed suit on behalf of a putative class, arguing that United’s policy violated the ADA and Title VII by failing to reasonably accommodate employees and retaliating against employees who sought exemptions.

The Relief Sought: Plaintiffs want (1) certification of a class; (2) declaratory judgment that United violated Title VII and the ADA; (3) a temporary restraining order; (4) a preliminary injunction; (5) a permanent injunction; (6) damages; and (7) attorney's fees and costs.

Current Status:

• TRO – GRANTED. In September, the parties stipulated that United would temporarily refrain from placing exempted employees on unpaid leave for not complying with the vaccine mandate; the Court thereafter entered several TROs extending the terms of the parties’ stipulation to avoid the risk of irreparable injury and maintain the status quo until the court could hold a hearing and rule on the motion for preliminary injunction.
• Preliminary Injunction – DENIED. The Court found that Plaintiffs had failed to meet at least one of the elements required for the extraordinary remedy of a preliminary injunction: “(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) the threatened injury to the movant outweighs the threatened harm to the party sought to be enjoined; and (4) granting the injunctive relief will not disserve the public interest.” Order at 5 (quoting City of Dallas v. Delta Air Lines, Inc., 847 F.3d 279, 285 (5th Cir. 2017)). Specifically, the Court found that Plaintiffs had failed to clearly carry their burden of showing they would suffer imminent, irreparable harm or injury. Each of the four theories put forth by the Plaintiffs as evidence of this irreparable injury—that they were faced with an “impossible choice” of taking a vaccine at the expense of their religious beliefs or facing indefinite unpaid leave; that they would lose seniority; that they would lose income, benefits and the downstream effects of income and benefits; and that their skill set would deteriorate during litigation—failed for different reasons. Because Plaintiffs failed to meet their burden with respect to one element required for issuance of a preliminary injunction, the Court declined to provide analysis of the remaining elements. However, the Court suggested that Plaintiffs’ arguments on those remaining criteria “appear compelling and convincing at this stage.”

Outstanding Issues: The Court made clear that in denying the preliminary injunction it was not ruling on the merits of the case. That said, the Court’s commentary on the policy itself likely provided significant comfort to those challenging vaccine mandates, including the observation that the Court was “disturbed by United’s seemingly calloused approach to its employees’ deeply personal concerns with injecting a foreign substance into their bodies” and that United’s policy “reflects an apathy, if not antipathy, for many of its employees’ concerns and a dearth of toleration for those expressing diversity of thought.” The Court made particular note of the fact that “United stated on the record that 99% of its employees are vaccinated and that there is virtually no chance to transmit COVID-19 on its planes.” The latter point shows the potential importance individualized considerations of vaccination rates for a given employer as well as the actual and/or perceived risk of the workplace environment.