The Sixth Circuit Reinstates the Federal Vaccine Mandate for Employers

RELATED 1/13/22 UPDATE: Breaking News: Federal Vaccine Mandate Blocked

On Friday, December 17, the 6th Circuit Court of Appeals released its decision in the consolidated cases challenging OSHA’s Vaccine and Testing Emergency Temporary Standard (ETS) applicable to private employers. As a refresher, the ETS requires employers with 100 or more employees to implement a mandatory vaccine policy or require unvaccinated workers to undergo weekly COVID-19 testing and wear a face covering in the workplace. The 6th Circuit decision reversed a stay that was previously implemented by the 5th Circuit. In doing so, the court allowed the ETS – with it vaccinate-or-test mandate – to move forward. The result creates a great deal of confusion for employers, who by now are likely getting whiplash from the regulatory back-and-forth.

What happens next?

Although we anticipate the United States Supreme Court will be the eventual decisionmaker, the timing of a Supreme Court decision is unknown. With that in mind, private employers with 100 or more employees must move ahead with the compliance steps required by the ETS to avoid potential penalties levied by OSHA.

What compliance steps are required, and what are the deadlines?

The necessary compliance steps were outlined in our November 4, 2021 blog. To summarize, compliance applies to private employers with 100+ employees as of November 4, or any time thereafter. (The ETS applicable to healthcare workers, as well as the mandate for federal contractors, both continued to be under an enforcement stay implemented by separate court decisions.) Although the initial compliance deadline has already passed, OSHA issued a statement on December 18, 2021 extending those deadlines as outlined below.

Private employers must meet the following requirements to comply:

Effective January 10, 2022:

  • Unvaccinated employees must wear a face mask while in the workplace.
  • Employers must provide up to 4 hours of paid time off, per dose, for employees to get vaccinated.
  • Employers must provide up to two days, per dose, of paid sick leave to recover from side effects of the vaccination. Paid sick leave can count against accrued PTO.

Effective February 9, 2022:

  • Employees should be fully vaccinated; those who are partially vaccinated or obtain initial vaccination after this date will be subject to testing for a period that ends two weeks following their last vaccination date.
  • Unvaccinated employees who regularly come to the workplace must begin weekly testing.
  • Employees who work offsite are not required to test unless coming to the office, in which case they must provide proof of vaccination or a negative test within 7 days. 

As a refresher, employers are not required to allow the weekly testing alternative. However, employers must continue to provide accommodations under the ADA for medical conditions for which vaccination is contra- indicated, as well as for religious accommodations under Title VII. 

Who pays for weekly testing?

So long as weekly COVID-19 testing is for monitoring purposes (and not due to COVID-19 exposure or symptoms), employers may require employees to pay for the costs of testing. Employers can either provide onsite testing or require that employees get tested on their own. Should an employee refuse to get tested, the employer can prohibit them from the workplace, and make that time away unpaid. 

What actions must employers take now?

This information was included in our November 4 blog, but it is worth outlining again. On or before the January 10, 2022, compliance date, private employers with 100+ employees will need to take the following actions: 

  • Develop and implement a mandatory vaccination policy, or in the alternative, a policy allowing employees to provide proof of weekly testing and requiring a mask in the workplace 
  • Develop a process for collecting and maintaining proof of vaccination status or weekly testing 
  • Review PTO policies to ensure additional paid time off is available for employees getting vaccinated, and allowing a minimum of 2 days off (which can count against PTO or sick time) to recover from vaccine side effects 
  • Determine how weekly testing will be handled and tracked, and who will cover the cost 
  • Consider implementing a vaccine and testing tracking system to ensure proper documentation is maintained to demonstrate compliance. Many HRIS vendors have introduced tracking modules for this purpose, and standalone vendors have entered the market  

Hopefully many of these action steps are already in the works, but if not, please do not hesitate to reach out to our team for assistance. Visit our COVID-19 Resource Hub for the help you need to comply, including a replay and related resources of our November 11 The COVID-19 Vaccine: How to Prioritize Your People – Part 3 webinar and vaccine compliance toolkit. 

Please contact meKelly Eckman, or a member of your First Person team with any questions.

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