(The latest development: On January 13, 2022, the Supreme Court of the United States ruled 6 to 3, that OSHA does not have the authority to require private employers to implement the COVID-19 Vaccines and Testing Emergency Temporary Standard.)
In September 2021, the White House issued a COVID-19 Action Plan that would affect private employers with 100 or more employees. Under this plan, employers would be required to ensure their employees are fully vaccinated in the workplace, except for those employees who have medical reasons, or those who are entitled to a reasonable accommodation because they have a disability or religious beliefs that conflict with the vaccination requirement. The goal is to protect more than 84 million workers from the spread of the disease on the job. The Occupational Safety and Health Administration (OSHA) was tasked with developing the rule to be implemented through an Emergency Temporary Standard.
On November 5, 2021, OSHA published the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which made it effective immediately.
The ETS required covered employers to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.”1
According to Frequently Asked Questions published by the Department of Labor, OSHA anticipated the ETS would be in effect for no longer than six months from the date of publication which was November 5. For more details, Paragraph 12.A. of the ETS provides a listing of requirements and the compliance dates of January 10, 2022, and February 9, 2022.
Within 24 hours of its publication, more than 27 states and a bevy of employers, religious organizations, and individuals filed cases challenging the ETS.
On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit Court issued a temporary injunction, citing “grave statutory and constitutional issues.” While the Court’s temporary order has delayed enforcement of the ETS, it does not mean it has been struck down or ruled invalid. It means that until the legality of the vaccines and testing mandate can be reviewed and likely further appealed to the U.S. Supreme Court, its mandates will not be in effect. For more background read OSHA's Vaccine Mandate for Large Employers: What to Do Now? This blog post was created November 11, 2021, by the legal team at Wagenmaker & Oberly. The blog post gives a detailed overview on the legal challenges, requirements of the ETS, employee count threshold, compliance problems with the ETS, employer penalties, and accommodations and exemptions.
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard. The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." As a result, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.2
On November 16, 2021, the Sixth Circuit Court of Appeals was selected via a lottery conducted by the Judicial Panel on Multidistrict Litigation to hear the consolidated cases objecting to the ETS. For more information read Update on Vaccine Mandate Litigation: Keep Watching...This blog post from November 24, 2021, by the legal team at Wagenmaker & Oberly gives an update on the consolidation of cases in the Sixth Circuit Court. It also details some religious arguments brought by organizations such as the Southern Baptist Theological Seminary and Asbury Theological Seminary.
On December 17, 2021, the Sixth Circuit Court of Appeals lifted the stay on the ETS for COVID-19 vaccination and testing. In a 2-1 vote, the Sixth Circuit Court of Appeals found that OSHA can issue a national vaccine and testing mandate because as an agent that causes bodily harm, a virus falls within the scope of OSHA’s emergency standard statutory authority. The Court's opinion highlighted OSHA's longstanding authority to protect workers against infectious diseases, both through the OSH Act and other statutes. In response to the Court's ruling, OSHA published the following statement on its website, "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."
Immediately following the Sixth Circuit Court of Appeals decision to lift the stay, challengers to the ETS filed an appeal with the Supreme Court of the United States.
The Supreme Court of the United States (SCOTUS) set January 7, 2022, as the date it would hear oral arguments on whether or not to stay the ETS while courts sort out the various vaccine related legal issues. The Court did not immediately release a decision. In the meantime, employers were encouraged to continue to prepare to "show good faith" in developing plans and policies, per the OSHA deadlines.
On January 13, 2022, SCOTUS issued two rulings related to vaccine mandates. In one decision, the Court released its 6 to 3 decision concluding that the administration overstepped its authority by seeking to impose the Occupational Safety and Health Administration's vaccine-or-test rule on private employers with 100+ employees. "Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category," the Court said in it's opinion.3
In a second decision, the Court upheld in a 5 to 4 decision that allows the mandate from the Centers of Medicare & Medicaid Services that requires healthcare workers at facilities receiving federal Medicare or Medicaid funding to comply with certain vaccination and testing requirements.
Now that the Supreme Court has issued its decision that OSHA does not have the authority to make large employers across the U.S. comply with a mandatory vaccine or testing policy to employees, what's next? Vaccine mandates can still be implemented at the state and local government levels. Additionally, some private employers, universities, and school systems have required vaccines for their employees, with religious and medical exemptions also in effect.
Over the past year, Brotherhood Mutual has developed risk management resources to assist religious organizations with commonly asked questions about the COVID-19 vaccine in the context of ministry.
Sample Policy Resources
When OSHA released the ETS, they also provided resources to help employers get started in developing policies and procedures, including prompts on collecting vaccination information, planning for PTO for employees to get vaccinated and recover, masking indoor policy for unvaccinated employees, maintaining records for vaccinations and COVID infections, and more.
OSHA released two editable policy templates for employers:
1 PDF Summary of the COVID-19 Vaccination and Testing Emergency Temporary Standard, Employer Policy on Vaccination, bottom of Page 2, https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf
2 United States Department of Labor - OSHA - Emergency Temporary Standard landing page, https://www.osha.gov/coronavirus/ets2
NYT December 22, 2021, article summarizing upcoming January 7, 2022, Supreme Court activity: https://www.nytimes.com/2021/12/22/us/politics/osha-vaccine-mandate-supreme-court.html
Associated Press January 13, 2022, news report on the Supreme Court decision regarding the OSHA ETS:
3 See Page 9 Supreme Court Opinion: https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf
Posted November 12, 2021. Updated January 13, 2022.
The information provided in this article is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.
Thank you for your interest in Brotherhood Mutual. We appreciate the opportunity to provide your church or other ministry with an insurance quote and will reply to your request as soon as possible.
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