OSHA Issues Emergency Vaccination Mandate; Litigation Ensues

On Nov. 4, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) requiring employers with more than 100 employees to develop, implement and enforce a COVID-19 vaccination policy. The mandate’s fate remains in question as intense legal activity surrounding it will likely send it to the Supreme Court. NMPF has been engaged with federal officials throughout, protecting dairy interests as the controversial measure plays out.

The Emergency Temporary Standard (ETS) action is one part of President Biden’s overall multi-prong plan to vaccinate the unvaccinated, potentially affecting more than 80 million people. The ETS released Nov. 4 requires employers with more than 100 employees to ensure the workers are vaccinated against COVID-19 or have a negative weekly COVID-19 test. The ETS requires employers subject to the OSHA ETS Vaccination Mandate to have a written policy in place by Dec. 5.

Several members of the National Council on Farmer Cooperatives and NMPF met with the White House Office of Management and Budget (OMB) on Oct. 18, more than two weeks before the rule was released, to discuss the standard then under development. The coalition that met with OMB raised numerous concerns about the mandate while making it clear it will continue to advocate for vaccinations.

Key questions include whether there will be enough tests to handle the demand. If there are insufficient tests to meet demand, the coalition is concerned the program will fail, further disrupting an already fragile supply chain. NMPF suggested that the White House should consider invoking the Defense Production Act (DPA), as it did several times in the past year to address other COVID related issues, to ensure availability of affordable rapid COVID-19 tests.

The group also raised concerns about record-keeping, time-off requirements, and potential suspension of the ETS if it creates supply chain disruption, particularly for workers deemed essential by DHS-CISA in its Critical Infrastructure Workers v 4.0 NMPF helped develop in 2020. Still, despite the ongoing litigation, NMPF suggests employers complete their written policies to avoid any negative repercussions and to encourage vaccination.

To assist in compliance, OSHA has provided two templates that are available from NMPF. One is for employers that mandate all employees get vaccinated and one is for employers that give employees the option to get vaccinated or wear a face covering and submit weekly negative COVID-19 test results. OSHA is suggesting that employers incorporate any existing COVID-19 policy into one of these templates.

The blue text in the templates show where they need to be customized. Below are the requirements that need to be in place by the respective compliance dates. OSHA has been clear in stating the ETS preempts any state or local prohibition on mandates. But OSHA also cautions employers to be mindful of conflicts with collective bargaining agreements.

The following details what needs to be achieved by requirement deadlines, however, OSHA has agreed to not enforce these requirements as long as the nationwide 5th Circuit Court of Appeals stay is in effect.

Dec. 5, 2021:

Employers must: (1) collect each employee’s vaccination status; (2) require unvaccinated employees to wear masks; (3) educate employees on and promote the benefits of the COVID-19 vaccine; and (4) require employees who are COVID-19 positive to quarantine and set protocols for dealing with the same.

Jan. 4, 2022:

Employers must begin requiring testing of unvaccinated employees weekly. (Note: employers are not required to pay for testing).

NMPF has shared several documents with its Regulatory Committee to help understand and prepare for compliance with the ETS which we will be happy to share with the broader NMPF membership. NMPF has also shared the CDC’s Key Things to Know About COVID-19 Vaccines, OSHA’s Penalties document about supplying false information and OSHA’s Worker’s Rights Under the ETS document. These documents may collectively be used meet the employee education requirements.

Finally, NMPF provided the link to OSHA’s ETS page: COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov)   This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

Current Litigation Status

Lawsuits were filed in every Court of Appeals shortly after the ETS was issued, on November 16th all cases were consolidated and the 6th Circuit Court of Appeals was selected to hear the case.  The Court has set a schedule and it appears that the stay will remain in place until at least December 10th. Any decision by the 3-judge panel would be appealed “en banc” to all active judges in the 6th Circuit, after that an appeal would go straight to the Supreme Court.

Because this is an extremely high-profile issue, NMPF expects the litigation will move swiftly and the stay could be terminated any time after Dec. 10th. NMPF advises members to at the least be familiar with the issues, action and materials that will be needed should the stay be lifted. Those materials are available on NMPF’s website and questions can be directed to Clay Detlefsen on NMPF’s staff.