Employment Law, Firm News

UPDATE: Supreme Court Blocks Vaccine Mandate for Private Employers

January 13, 2022

Several weeks ago, President Biden announced a new plan to vaccinate U.S. workers in an ongoing attempt to combat the Covid-19 pandemic.  Today, the US Supreme Court blocked the Biden Administration from enforcing vaccine mandates for private employers. Click here to view news announcement.

Under the plan, large employers were required to have their workers get Covid-19 vaccines or undergo at least weekly testing. The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) to implement the Biden Administration’s plan. The ETS establishes binding requirements to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 in the workplace.

All vaccine mandates are now on hold for private employers.

The OSHA rule covered all employers with a total of 100 or more employees with few exceptions. Covered employers were required to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.

Who is now impacted by the ETS? 

  • Only public employers with OSHA-approved State Plans are bound to follow ETS
  • Note that employees who provide healthcare services or healthcare support services are still bound by the Healthcare ETS under the SCOTUS decision.

Who is not impacted by the ETS?

  • Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors
  • Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (§ 1910.502).
  • Workplaces of employers who have fewer than 100 employees in total.
  • Public employers in states without State Plans.

There are exemptions to the ETS. Employees of an employer covered by the ETS do not need to adhere to the provisions of this ETS if they meet the following criteria:

  • Employees who do not report to a workplace where other individuals are present.
  • Employees while working from home.
  • Employees who work exclusively outdoors.

The ETS requires employers to:

  • Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
  • Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.
  • Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
  • Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return to work criteria are met.
  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
  • Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
  • Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.

Johnson & Bell’s Employment Attorneys are available to answer questions about this development and how it might affect your workplace.  Please contact Genevieve M. LeFevour, Christopher J. Carlos or Caroline K. Vickrey with questions.

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