December 23, 2021 UPDATES

• U.S. OSHA – New & Updated ETS FAQs. The Occupational Safety and Health Administration updated its FAQs about the vaccine-or-test emergency temporary standard (ETS). The text of questions 6.J and 6.K was updated to address the use of over-the-counter OTC tests to satisfy the testing standard. In addition, a series of new FAQs were added as questions 6.Q through 6.X, addressing the following issues:

• 6.Q. Do over-the-counter (OTC) tests that feature digital reporting of date and time stamped results need to be observed by the employer or an authorized telehealth proctor?
  
  
• 6.R. Will a single over-the-counter (OTC) COVID-19 test satisfy the weekly testing requirement of the ETS even for an OTC test that requires completion of more than one test (serial testing) per the Emergency Use Authorization?
  
  
• 6.S. Is a self-administered and self-read COVID-19 test acceptable under the ETS if an employee submits a photograph of the test results to their employer after?
  
  
• 6.T. Can an employer or authorized telehealth proctor observe more than one over-the-counter (OTC) COVID-19 test at the same time?
  
  
• 6.U. Will retroactive review of videos made by employees self-administering and self-reading COVID-19 tests meet the requirements for employer or authorized telehealth proctor observation?
  
  
• 6.V. May employers remotely observe the self-administration of over-the-counter (OTC) tests via a live streaming video conference program, such as Zoom, Skype, or Microsoft Teams?
  
  
• 6.W. If an employer observes or conducts over-the-counter COVID-19 tests, how should the employer document the results?
  
  
• 6.X. For employees who do not report to a workplace or see a supervisor on a regular basis, how can employees be tested?

• Federal Contractor Mandate – Injunction Issued. As reported in news outlets, a federal judge in Florida granted a preliminary injunction sought by the State of Florida, barring enforcement of the vaccine mandate applicable to federal contractors. The order applies to “any covered contract in Florida.”



• Vaccine Mandates – Supreme Court Arguments. News outlets report that the U.S. Supreme Court will hear oral arguments, on an expedited basis, on January 7, 2022 on both the OSHA vaccine-or-test ETS and the Centers for Medicare and Medicaid Services vaccine mandate for healthcare workers.

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December 20, 2021 UPDATES

What Just Happened to the OSHA and Federal Contractor Vaccine Mandates?

On the evening of December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the federal Occupational Safety and Health Administration (OSHA) COVID-19 Emergency Temporary Standard (ETS), which imposes “vaccinate or test” requirements for private employers. Within two hours, a broad coalition of 26 trade groups filed the first of several emergency appeal applications to the U.S. Supreme Court requesting a stay pending Supreme Court review. OSHA then granted employers a limited grace period to comply with the ETS’ requirements. In contrast, the same day, the Eleventh Circuit upheld the nationwide injunction against the vaccinate mandate applicable to federal contractors, pending further review. Although this situation remains fluid, employers subject to the OSHA ETS should consider preparing for compliance on the revised timetable, as should federal contractors with 100 or more employees.

OSHA Vaccine-or-Test Mandate
Shortly after the first petition to the Supreme Court was filed, OSHA announced that it will extend employers’ timeline to comply with the ETS. Per OSHA, employers will now have until January 10 to develop compliant policies and until February 9 to begin testing programs.

Staffing Agencies
In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS. The host employer, however, would still be covered by this ETS if it has 100 or more employees in addition to the employees of the staffing agency. On the other hand, if a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. A host employer may, however, require the staffing agency to ensure that temporary employees comply with its policy (either be fully vaccinated or tested weekly and wear face coverings).

So Now What?
At the current time of publishing this information from Littler, Littler cannot predict whether the Supreme Court will agree to take up the first Application addressing the OSHA vaccine mandate described above or others that followed, or grant a stay pending review of the Application.

In any event, while the federal contractor mandate remains stayed, the ETS is not stayed at this time, although OSHA has offered a brief holiday extension of the applicable timelines. Employers may continue to develop COVID-19 programs to comply with the “vax or test” mandate, including collecting employees’ vaccination status, drafting an ETS policy, putting together a testing protocol, and training employees on relevant processes and policies, with the revised January 10 and February 9 deadlines in view.