Update: Federal Court Upholds OSHA’s Employer COVID-19 Vaccination Mandate

Late last Friday a three-judge panel of the 6th Circuit Court of Appeals voted 2-1 in favor of lifting the stay that the 5th Circuit Court of Appeals had imposed in early November on the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS). The ETS mandates employers with 100 or more employees to require their employees to either get vaccinated against COVID-19 or be subject to weekly testing. The court stated that due to the nature of COVID-19 OSHA “must be able to respond to dangers as they evolve.”

Following the court’s ruling, various groups immediately filed appeals with the Supreme Court to halt the 6th Circuit’s ruling. The petitioner’s filings will be fielded by Justice Kavanaugh who has the ability to rule on the appeal by himself or include the full court for a decision. The timing of the Supreme Court’s action is pending, that will also be decided by Justice Kavanaugh.

The court’s ruling now allows OSHA to implement and enforce the various ETS provisions for covered employers, but with new compliance dates. Following the court’s ruling OSHA stated that, “To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”

In light of this latest development on OSHA’s ETS, absent an intervention from the Supreme Court to stay or vacate the rule the focus now likely moves to achieving compliance with the various ETS provisions. To this end, NRMCA has created an industry-specific written policy template as is required by the ETS for covered employers. Below are the specific deadlines and pertinent website links for review.

Below is a broad synopsis of the ETS as it relates to the ready mixed concrete industry, including the updated compliance deadlines. 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, then 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 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 of 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 their 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. You can also access NRMCA’s written policy template here. 

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 an employer has, 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 states:

“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 considered) and if 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.

January 10, 2022 (originally December 6, 2021):

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

February 9, 2022 (originally 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 or changed to comply with the requirements of the ETS written plan requirements. 

Workplace-related COVID-19 deaths must be reported to OSHA within 8 hours and in-patient hospitalizations shall be reported to OSHA within 24 hours of learning of the instances.

Resources

The ETS language, materials, FAQs, fact sheets and written policy templates can be found here. Despite the continued uncertainty of the ETS litigation, NRMCA continues to advocate on and monitor the ETS while updating the membership on its changing status.

For more information, contact Kevin Walgenbach at kwalgenbach@nrmca.org.