Federal Court Halts OSHA Employer COVID-19 Vaccination Mandate

This past weekend following the Occupational Safety and Health Administration’s (OSHA) November 4 release of its anticipated Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to require their employees to either get vaccinated against COVID-19 or be subject to weekly testing, the 5th Circuit Court of Appeals granted a temporary stay of the ETS. The lawsuit, filed by the states of Louisiana, Mississippi, South Carolina, Texas and Utah, asserted that the OSHA ETS held “grave statutory and constitutional issues,” which the court upheld.

The Department of Labor (DOL) immediately responded by stating that, “the Occupational Safety and Health Act explicitly gives OSHA [the Occupational Safety and Health Administration] the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them. We are fully prepared to defend this standard in court.” Both the states and DOL have been given deadlines for filing responses this week, likely leading to a final determination on a permanent suspension of the ETS by week’s end. This lawsuit is also just one of many from other states, businesses and many stakeholders challenging the validity of the ETS. As these additional lawsuits are litigated it will paint a clearer picture about the need for compliance with the ETS.

Should the ETS be upheld by the courts and allowed to go into effect, the rule broadly requires covered employers to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.” Below is a broad synopsis of the ETS as it relates to the ready mixed concrete industry. While not exhaustive, the summary touches on what NRMCA believes to be the larger points of the ETS for general compliance and how it impacts mixer drivers.

Does the ETS Apply to the Ready Mixed Concrete Industry?

If a ready mixed concrete industry employer has 100 or more employees company-wide, then the employer is covered by the rule. Unfortunately, the threshold of 100 or more employees applies to the employer/company as a whole, NOT per individual location. If an employer has 99 or fewer employees company-wide, it is not covered by the ETS.

What Does the ETS Require? Covered employers must establish a written policy to implement the ETS within the company. The written plan should include items such as:

• Purpose – why there is a new requirement
• Scope – what/who does the plan cover, who does it exempt, provide employee w/ the plan, ETS text, provide in an appropriate language/literacy that employees understand
• Procedures for managing vaccinated versus unvaccinated employees – what is required of each set of employees
• Determining vaccination status – survey all employees about vaccination status and keep records of the status for the duration of the ETS, employers also have to obtain proof of vaccinations
• How the company is supporting employee vaccinations – employers must allow up to 4 hours paid for each vaccination dose and paid time off to recover from any adverse side effects
• Management of positive COVID cases – positive cases are required to notify their employer, any positive COVID-19 case must be removed from the workplace and follow strict return to work procedures, time off from work for a positive case is NOT required to be paid
• Process for implementing testing of unvaccinated employees – unvaccinated employees must be tested at least weekly, employer does NOT have to provide or pay for the testing (unless required by through other means); test results must be retained by employer
• Requirements for face covering usage – unvaccinated employees must wear face coverings in most settings at the workplace
• Non-compliance – what is the policy for addressing employees refusing compliance with the plan
• Procedures for new employees – new hires shall be notified of and comply with the plan
• Recognition of employee privacy and confidentiality – specific employee information pertaining to the plan must be kept private and confidential
• Avenue to field employee questions about the plan – who are plan questions directed to and what is that person(s) contact information
• Communication – when, how will the employer communicate to employees about the ETS, company plan, requirements, etc.

To assist employers with this lengthy and detailed requirement, OSHA has created a template vaccination/testing policy document.

Are There Any Exceptions to the ETS?

Exceptions to the ETS are few. The ETS specifically does NOT cover employers that are covered by either OSHA’s Healthcare ETS from earlier this year and employers covered by the Federal Contractor Vaccination Mandate since both sets of employers fall under different COVID-19 requirements. As well, when determining the number of employees in a company, the ETS does NOT require an employer to count independent contractors and leased employees, only full time, part time and temporary workers.

The ETS also does NOT apply to “employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.” Essentially this means the ETS does NOT apply to remote employees or those who work outdoors. Upon further examination of the phrase “employees who work exclusively outdoors”, the text of the ETS discusses this:

“An employee will only be covered by the exemption in paragraph (b)(3)(iii) if the employee works exclusively outdoors. Thus, an employee who works indoors on some days and outdoors on other days would not be exempt from the requirements of this ETS. Likewise, if an employee works primarily outdoors but routinely occupies vehicles with other employees as part of work duties, that employee is not covered by the exemption in paragraph (b)(3)(iii). However, if an employee works outdoors for the duration of every workday except for de minimis use of indoor spaces where other individuals may be present – such as a multi-stall bathroom or an administrative office – that employee would be considered to work exclusively outdoors and covered by the exemption under paragraph (b)(3)(iii) as long as time spent indoors is brief, or occurs exclusively in the employee’s home (e.g., a lunch break at home). Extremely brief periods of indoor work would not normally expose employees to a high risk of contracting COVID-19; however, OSHA will look at cumulative time spent indoors to determine whether that time is de minimis. Thus, if there are several brief periods in a day when an employee goes inside, OSHA will total those periods of time when determining whether the exception for exclusively outdoors work applies. Finally, to qualify for this exception, the employee’s work must truly occur “outdoors,” which would not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite. Workplaces that are truly outdoors typically do not include any of the characteristics that normally enable transmission of SARS-CoV-2 to occur, such as poor ventilation, enclosed spaces, and crowding.”

This language could apply to mixer drivers and thus exempt them from vaccination/testing/masking requirements under the ETS if their time spent indoors was brief and infrequent (too small to be deemed worthy of consideration) and they remain alone when inside the cab of their truck. *This specific language matches the discussions NRMCA has had with DOL, OSHA and White House OMB about the unique nature of when, where and how mixer drivers conduct their work.

It’s important to understand that while the employees outlined above do NOT have to comply with the requirements of the ETS, they are required to be counted in the total number of employees. For example, an employer would still be covered under the ETS if it had 150 employees, but 100 of them were 100% remote. There would still need to be a written plan created and followed for the other 50 employees for vaccinations and/or testing.

Compliance Dates - The ETS has two different compliance dates associated with specific items:

December 5, 2021

• Employer written plan must be completed
• Employer survey of employee vaccinations must be completed
• Unvaccinated workers must begin wearing masks

January 4, 2022

• Employees must be vaccinated, and/or
• Testing procedures must in place to require unvaccinated employees be tested at least once every 7 days

What Else?

While the ETS preempts state and local requirements for COVID-19 procedures, those state and local requirements may still be required in addition to the ETS. An employer’s written plan does NOT have to be submitted to OSHA. However, if requested, the employer is required to provide its written plan to OSHA within 4 business hours of the request. As well, an employer’s written plan should be “readily accessible to all employees”.

If an employer already has a vaccination and/or testing requirement in place, that plan will need to be updated, amended or changed to comply with the requirements of the ETS written plan requirements. Workplace-related COVID-19 deaths shall be reported to OSHA within 8 hours and in-patient hospitalizations shall be reported to OSHA within 24 hours of learning of those instances.

Resources

Click here for ETS language, materials, FAQs and fact sheets. You may also contact Kevin Walgenbach at kwalgenbach@nrmca.org.