OSHA ISSUES ETS ON VACCINE & TESTING REQUIREMENTS FOR EMPLOYERS WITH MORE THAN 100 U.S. BASED EMPLOYEES
December 8, 2021
On November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) released an Emergency Temporary Standard (the “ETS”) requiring that employers with 100 or more employees implement vaccination and testing protocols by January 4, 2022. The rule was originally announced in early September by the Biden administration and calls for all private employers with 100 or more employees to implement procedures that would require their employees be fully vaccinated against COVID-19 or submit to weekly testing and wear a face covering at all times while at work if they choose to remain unvaccinated. Employers would also be required to determine the vaccination status of all employees and require employees to show acceptable proof of vaccination status. The rule also includes a proposed penalty of up to $14,000 per violation in instances in which a business is found to be noncompliant.
The rule, as written, is unclear regarding the ETS’ applicability to airline personnel in the scenario where a foreign air carrier has more than 100 employees globally, but fewer than 100 employees in the United States. It is also unclear whether the ETS could potentially apply to crewmembers who are operating aircraft to/from the United States, although we believe it unlikely the ETS would apply to such employees. We are actively working to clarify these issues with OSHA and via the International Air Transport Association and will keep our readers updated as to any new developments.
In the meantime, however, it is important to note that on November 6, 2021, the Fifth Circuit Court of Appeals issued an order blocking enforcement of the ETS due to legal challenges brought by various companies, individuals and officials in several states against the Biden administration. Critics of the rule question its constitutionality, specifically, whether the rule exceeds the federal government’s authority under the Commerce Clause and whether it impedes upon U.S. citizens’ civil liberties. Critics have also noted that enforcement of the rule may cause workforce related issues such as strikes and labor shortages due to employees potentially choosing to leave their jobs as opposed to adhering to the vaccination requirement. The effect of the Court’s ruling is that the ETS is not currently in effect and as of now will not be enforced after the January 4, 2022 compliance deadline.
In the last few weeks, various entities also filed petitions for review of the ETS in 11 of the 12 U.S. Circuit Courts of Appeal. As a result, on November 16, 2021, the Judicial Panel of Multidistrict Litigation consolidated all petitions for review of the ETS, which includes the Fifth Circuit’s ruling, before the U.S. Court of Appeals for the Sixth Circuit, which will now determine whether to continue the Fifth Circuit’s order. The Sixth Circuit has yet to consider the issue.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com 202-659-6622) or Drew Derco (dderco@eckertseamans.com 202-659-6665).
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