On November 5, 2021,
OSHA released a COVID-19 Emergency Temporary Standard (“ETS”) providing that employers
with at least 100 employees adopt a vaccination policy requiring employees to
be fully vaccinated or submit to weekly testing. The ETS further required
employers to provide paid time off to recover from and receive the vaccine, and
unvaccinated employees must wear a mask when in contact with coworkers. Under the ETS, the test for the number of
employees is counted by the enterprise, not the location. Part-time employees
are counted, but independent contractors are not. In a traditional
franchisor-franchisee relationship in which each franchise location is independently
owned and operated, the franchisor and franchisees would be separate entities
for coverage purposes.
This rule took
effect immediately upon publication in the Federal Register.
After the ETS was
released, lawsuits were filed in the U.S. Courts of Appeals for the Fifth, Sixth,
Seventh, Eighth, Eleventh and D.C. Circuits requesting a stay, in which the
petitioners outlined the irreparable economic harm that would be suffered if the
ETS remained in effect. On November 6, 2021, the Fifth Circuit, in a per curiam
decision, issued an order staying OSHA’s mandate pending further action of that
court.
On November 12,
2021, the Fifth Circuit issued a sweeping order continuing its initial stay of
the ETS. The Fifth Circuit found the ETS “imposes a financial burden upon
[private employers] by deputizing their participation in OSHA’s regulatory
scheme, exposes them to severe financial risk if they refuse or fail to comply,
and threatens to decimate their workforces (and business prospects) by forcing unwilling
employees to take their shots, take their tests, or hit the road.” The Order is
silent as to whether it applies only to the Firth Circuit, but the petitioners
did not limit their request to any jurisdiction.
While the ETS is stayed, employers do not have to comply with the terms outlined by OSHA. However, employers should continue to monitor the legal developments and begin preparing policies and procedures for compliance with the ETS should the stay be lifted.
