On Thursday, September 9, 2021, President Biden released his administration’s Path Out of The Pandemic. Included in the six-point plan was a directive that the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) develop an Emergency Temporary Standard (ETS) that will require all employers with at least 100 employees to take steps to require their workforces to be fully vaccinated against COVID-19 or undergo weekly COVID-19 tests before being allowed to come to work. The proposed regulation will affect more than half of the total U.S. workforce.
Last week, OSHA sent an Emergency Temporary Standard (ETS) to the White House for review. The Office of Information and Regulatory Affairs has the final say as to when the ETS is released. However, given the downward trend nationally of daily new cases since the President’s September 9 announcement, expect the ETS to be implemented sooner rather than later. Given the inevitability of a legal challenge to the ETS, for the reasons explained below, every day that the case rates decline the chances of court approval of the ETS diminish.
According to the White House, Employers who fail to enforce the measures outlined in the ETS could face fines of up to $14,000 per violation, a standard OSHA enforcement measure.
A Preview of What is to Come?
The draft ETS has not been made available to the public and it is unlikely to be revealed before it is approved. In June 2021, however, OSHA issued an ETS for health care workers which provides some insight into what the large employer ETS is likely to entail.
The healthcare ETS requires that employees prove they have been fully vaccinated against COVID-19 or that they secure weekly COVID-19 tests and give their employers and results. The healthcare ETS also requires covered employers to provide employees paid time off to get vaccinated and to recover from side effects associated with the COVID-19 vaccine. Employees who test positive or “who may be contagious” are required to work remotely, otherwise be separated from other workers, if possible, or be given paid time off (separate from their earned vacation or PTO) of up to $1400 per week.
Employers were given 14 days to comply with most of the ETS standards, with the remaining provisions requiring compliance within 30 days.
Potential Legal Challenges
Opponents of government-mandated vaccines have already begun to prepare legal challenges to the large employer ETS. Any person (or business) who may be adversely affected by the ETS may at any time up to 60 days after the ETS is promulgated, file a petition with their local US Court of Appeals for a judicial review of a challenge to the validity of an ETS. Several employer groups and several states have announced they plan to challenge the validity of the large employer mandate.
One argument against the mandate is based on the fact that by statute, an ETS can only be issued on findings that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and that the “emergency standard is necessary to protect employees from such danger.” A challenger could argue that there is no rational basis for a conclusion that employees working for a business with 100 or more employees would be “exposed to grave danger” from COVID-19, but those working for businesses with 99 or fewer employees would not.
Second, a challenger could argue that businesses have been dealing with the risks of COVID-19 since March 2020. Vaccines have been available to most workers since late last spring. Why now, 18 months into the pandemic, is there a sudden need for an ETS? In anticipation of that very argument, the healthcare ETS included a 200+ page preamble explaining the “grave danger” that COVID-19 presents to health care personnel. OSHA will also likely cite the rise and risk of the Delta variant as an example of why the ETS is necessary, namely the potential risk of new currently unknown highly infectious variants.
A third challenge may rely on the fact that by the time the ETS is put into place, the statistical trend of COVID-19 infections likely will have continued on the current downward trend. As of September 1, 2021, the new case seven-day average stood at 166,107 but has steadily declined to 79,348 as of October 19, 2021, less than half the case rate as of the peak of the Delta variant surge. This downward trend, it will be argued, is evidence that even if COVID-19 presented a grave danger in the workplace at one time, that danger has substantially dissipated over time.
In response, expect the government to present its total statistical case showing the sobering number of total deaths attributed to COVID-19 or complications arising from COVID-19 (approx. 750,000). The administration is also likely to argue that the ETS is needed to mitigate against the risk of a new highly infectious and/or deadly variant, and that relative to the overall mortality and infection rates, the burden imposed by this ETS is relatively small.
Summing it Up
Unless the pending OSHA ETS is enjoined by an appellate court pending a legal challenge, employers with 100 or more employees will soon be faced with a new COVID-19 compliance headache. It seems likely that affected employees, namely those who have not been vaccinated for any reason, will strongly resist these anticipated compliance requirements and many may quit their jobs rather than comply. Employers will be charged with enforcing this regulation and will again find themselves between the rock of compliance in the face of employee resistance, and the hard place of potential OSHA violations and significant fines if they fail to abide by the ETS requirements.
With the submission of the draft ETS to the White House, now is a good time for affected employers to prepare for the next round of pandemic-related compliance requirements. For more information, contact employment law attorney Bill Egan at began@avisenlegal.com
