Sarasota, FL (WorkersCompensation.com) – It’s now up to one of the more conservative federal appeals courts to determine the next step in OSHA’s emergency temporary standard (ETS) for the coronavirus. The 6th U.S. Circuit Court of Appeals was chosen via lottery to consolidate the nearly three dozen challenges to the requirement that larger businesses mandate either vaccinations or weekly testing and face masks for their employees.
Experts predict the issue will likely go to the U.S. Supreme Court for a final determination. In the meantime, organizations are advised to be prepared.
“A lot of things up in the air right now,” said Travis W. Vance, a partner at Fisher & Phillips LLP. “What I say employers should do now is go ahead and knock out the paperwork side.”
During the most recent Out Front Ideas webinar speakers suggested steps employers should take to be ready for the December and January deadlines for the ETS, even though they predict the challengers have a better than average chance of winning their case.
The ETS requires companies with at least 100 workers to have their policies in place by Dec. 5, with testing for those given that option to begin Jan. 4. The 5th U.S. Circuit Court of Appeals issued a stay on the ETS earlier this month.
The remaining non-selected circuit courts from this week’s lottery will transfer their petitions for review of the ETS to the 6th circuit for all future proceedings. The 6th will determine whether to continue, alter or lift the 5th circuit’s stay.
It’s unclear how the 6th Circuit will rule. Three of the court’s 15 judges will be charged with making the final ruling. The court is comprised of 10 justices appointed by Republican presidents, with the remaining five named by Democratic presidents. As of press time, it had not been determined which of the justices would be involved.
An ETS is used rather than a permanent standard if there is a “grave danger” present. “OSHA shall issue an ETS if the agency determines that employees are subject to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and an ETS is necessary to protect employees from such danger,” according to the ETS notice in the Federal Register.
The notice said the ETS would apply to larger companies because the agency believes they “have the administrative capacity to implement the standard’s requirements promptly.” OSHA said it is assessing and seeking comments on the capacity of smaller companies to comply with the ETS. “Nonetheless, the agency is acting to protect workers now in adopting a standard that will reach two-thirds of all private-sector workers in the nation, including those working in the largest facilities, where the most deadly outbreaks of COVID-19 can occur.”
Chances of the ETS withstanding an ultimate U.S. Supreme Court ruling are not so good, according to the speakers. “I’ve been saying since day one 65% that it gets thrown out,” Vance said. “If OSHA loses at the circuit level, I don’t see the Supreme Court reversing it. If they win at the circuit level they’ll have a shot.”
Among other issues, Vance questioned the timing of the ETS. “If it’s such a grave danger why did they adopt a healthcare COVID-19 ETS back in June and not apply it to all workplaces?”
For now, OSHA has suspended activities related to the implementation and enforcement of the ETS “pending future developments in the litigation.” The agency said it is confident in its authority to protect workers in emergencies.
Recommendations for Employers
Saturday, Nov. 20 is the deadline for states with their own OSH plans to determine what they will do. Vance suggests companies in those states “take a breather” until then – except for those in California, Washington or Oregon. “Those three states are pretty aggressive and will probably do something no matter what the feds do.”
Businesses in other states should start working on putting together their rosters to identify who is vaccinated and who is not. “Look at local and state laws to make sure you can collect that,” Vance said. “In most states you can.”
Also, companies are advised to start developing policies as to whether they will mandate vaccinations or allow testing and masking. Once completed, those who are unvaccinated must begin wearing face masks as of Dec. 6. As of Jan. 4 employers who allow testing must begin that, based on the current ETS deadlines.
The speakers also suggest employers prepare training records for employees and figure out what procedures they will use. “You can have all this behind the scenes but get that in order before Dec. 5 so if the ETS is upheld you can meet that deadline,” Vance said.
Organizations also need to determine how they will treat employees who claim medical or sincerely held religious beliefs for not getting a vaccine. “If you have a policy now that is like the ETS, with a testing option where people are not required to get vaccinated, do you need to go through the accommodation process? Most likely, no; you’re already providing an option for people not vaccinated to continue to work in the office,” said Bryon Bass, SVP Workforce Absence at Sedgwick. “Those employers with mandates, this is where you have to look at things differently.”
An employee with a medical condition that is covered under the Americans with Disability Act must be provided with a reasonable accommodation. The ETS mentions “other medical circumstances” that don’t fall under the ADA.
“My Advice – regardless, provide a similar accommodation you would for anybody else,” Bass said. “Don’t go through an exhaustive [process], Provide accommodations for individuals with medical necessities who can’t get vaccinated. That way you don’t get into ‘is that ADA or not.”’
And what of employees who say they cannot wear a mask and/or get tested?
“What you need to do is you need to determine if there is an ADA qualified disability. Go through the process just like any other accommodation,” Bass said. “The interactive process is still critical. Engage in dialogue, understand the restriction. We’ve seen a variety of these coming through our workforce absence. Those are the ones you really want to pay more attention to. Once you go through the interactive process you’ll understand what their needs are and maybe come up with an accommodation … you need to make sure you document what you are doing, how long it will be effective, the boundary conditions.”