Here it is, folks!
The U.S. Department of Labor’s OSHA Division just issued the Emergency Temporary Standard (ETS) relating to COVID-19 vaccination and testing in the workplace.
The new ETS covers all employers with 100 employees or more and who are not already covered by prior executive orders for healthcare workers and federal employees/contractors. However, if you work exclusively at home or outdoors, then you’re not subject to the ETS requirements.
The new ETS means that if you work for a company covered by the ETS, then the company is required to establish a mandatory vaccination policy. All employees subject to the vaccine mandate must comply by December 4, 2021 and get vaccinated.
However, the ETS does allow for a testing alternative. An employee can elect to submit to weekly testing in lieu of a vaccine, but the company can require the employee to cover the cost of the testing. Face coverings also have to be worn in the workplace.
Covered employers are also required to establish the vaccination status of employees through appropriate documentation. This does not violate HIPAA (I know you’ll ask).
And finally, companies are required to provide paid time off for an employee to get the vaccine and recover from any side effects.
Whew. So that’s the nitty gritty. I will say that many large employers–at least in my neck of the woods–have already instituted a vaccine mandate. I know exactly when those mandates have been issued, because my office gets flooded with calls about religious exemptions each time it happens.
The same exemptions will apply in this ETS scenario. Employees with a disability can apply for an exemption based on that condition, but it will have to be supported with specific information from your doctor about why the vaccine would create medical issues or risk of harm based on the disability. Religious exemptions can be sought if an employee has a sincerely held religious belief that receiving the vaccine will create conflict with such beliefs AND an accommodation can be made that would not place an undue burden on the company.
So that’s what the new ETS says. But what are the likely legal challenges?
Well, South Carolina has its own state-level OSHA plan, so SC OSHA has a limited amount of time (15-30 days) to either adopt the ETS, create a stricter plan, reject the plan altogether (which risks the state’s whole OSHA plan being overturned, not good), or challenging the law in court.
Many states, including South Carolina, have already announced their intentions to challenge the new ETS. Yesterday, Gov. McMaster issued an order prohibiting state agencies from enacting vaccine mandates and requiring state agencies to cooperate with the Attorney General’s office in fighting any such mandates. I would expect to see numerous lawsuits filed over the next few days and weeks. These lawsuits will also seek injunctive relief, which means that the states would ask the court to issue an injunction/court order preventing the mandate from taking effect while the lawsuit proceeds. The court could make the injunction specific to one state or could issue a nation-wide injunction.